Suit over doctor’s note is a “health care liability claim,” 5th Court of Appeals rules

The list of disputes that qualify as a “heath care liability claim” under Texas Civil Practice & Remedies Code Chapter 74 just got a little longer. Chapter 74 requires a plaintiff litigating such a claim to file an expert report early in the proceedings. This time, the dispute at issue involves a doctor’s note, according to a Nov. 21 decision by Dallas’ 5th Court of Appeals.

The background in Crystal Monson v. Allen Family First Clinic, et al. is as follows, according to the 5th Court: In 2009, Monson saw Dr. Chandana Reddy at the Allen Family First Clinic for treatment. When Monson left the office, she received a note regarding her ability to return to work. That note stated that Monson could return to work five days later.

Reddy’s office manager, Candace Gauntt, later sent a letter to Monson’s employer that noted that Monson left the office “with no work limitation” and explained that previous note was filled out by a new employee who “misunderstood” what the doctor wanted. Monson was subsequently terminated by her employer, and the letter was an alleged direct and proximate cause of her termination.

In 2011, Monson sued Reddy, Gauntt and the clinic, alleging invasion of privacy and intentional infliction of emotional distress against the defendants, among other things. The defendants moved to dismiss Monson’s case because she failed to file an expert report 120 days after she filed her petition. Monson later amended her petition to omit the invasion of privacy claim, but a trial court dismissed her case for failure to file an expert report.

On appeal, Monson claimed that the trial court erred in dismissing her case because it was not a health-care liability claim and no expert report was needed, but the 5th Court disagreed.

“A physician or health care provider’s note recommending that a patient have time off from work or modified working conditions is ‘health care’ when the time off or modified working conditions are part of the patient’s medical care or treatment,” wrote Justice Lana Myers in an opinion joined by Justices Jim Moseley and Robert Fillmore that affirmed the trial court’s decision.

Robert D. Ranen, a partner in Gunter’s Ranen & Netzer who represents Monson, declines comment about the decision.

Russell G. Thornton , a partner in Dallas’ Stinnett Thiebaud & Remington who represents the defendants in the case, is pleased with the decision. Notes Thornton, “The courts just apply what the Legislature’s definition of what a health care liability claim is. The way the statute is, it’s pretty broad.”

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Source: Texparte Blog (Council, 11/27)

Meningitis victims try to freeze nearly $500 million in assets

A federal judge in Boston on Tuesday is expected to hear arguments on whether to freeze nearly $500 million in assets, including luxury homes, related to New England Compounding Center, the pharmacy linked to a deadly U.S. meningitis outbreak.

U.S. District Judge Dennis Saylor has ordered an expedited hearing to determine whether to freeze at least $461 million in assets belonging to NECC, its owners and two related companies, court records show. Saylor granted the request after plaintiffs' attorneys argued that NECC and its owners could conceal assets in order to avoid judgment in a growing number of cases being filed in the federal court system.

The Centers for Disease Control and Prevention said 34 people have died and 490 have been injured after Framingham, Massachusetts-based NECC shipped thousands of fungus-tainted vials of methylprednisolone acetate to medical facilities throughout the United States. The steroid was typically used to ease back pain.

NECC and sister company Ameridose have been shut down as U.S. regulators and law enforcement investigate what happened.

"There are so many unknowns in this case that we need to take this step to safeguard our clients` interests and the interests of the hundreds of people we believe were injured by the negligence of NECC and its owners," said Thomas Sobol, a Boston-based lawyer representing plaintiffs in the case before Judge Saylor.

Meanwhile, lawyers for NECC and the family that launched the specialty pharmacy are asking Saylor to stay all proceedings pending a ruling on whether to consolidate a number of lawsuits via the Judicial Panel on Multidistrict Litigation.

"There are at least 43 such cases currently pending in numerous federal courts around the country," NECC lawyers argued in a recent motion. "All of these actions seek recovery for injuries allegedly caused by the injection of methylprednisolone acetate compounded and distributed by NECC."

Barry Cadden, who was NECC's top pharmacist, launched the pharmacy with the help of his brother-in-law Gregory Conigliaro, a recycling entrepreneur. Sobol said in court papers the two men seemed to thrive financially.

In 2010, Conigliaro bought a $3.5 million home in Southborough, Massachusetts, with six bedrooms, nine bathrooms and more than 11,000 square feet of space, according to court papers filed by Sobol. Barry Cadden and his wife, Lisa, bought a beach home about three years ago that recently was featured in Rhode Island Monthly magazine.

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Source: Reuters (McLaughlin, 11/20)

Congress subpoenas co-owner of meningitis-linked pharmacy

BOSTON- The chief pharmacist at the company linked to the deadly meningitis outbreak has received a subpoena to appear before a congressional committee after he declined to appear voluntarily.

The House of Representatives Energy and Commerce Committee issued the subpoena to Barry Cadden, co-owner of the Massachusetts-based New England Compounding Center and its chief pharmacist before the compounding pharmacy surrendered its license in the wake of the outbreak.

"With more than 400 people infected and 30 deaths, it is critical that we hear directly from the head of the facility linked to the outbreak," said Committee Chairman Fred Upton and Ranking Member Henry Waxman in a statement. "Since Mr. Cadden has indicated he will not appear voluntarily, we are left with no choice but to issue a subpoena."

James Coffey, Director of the Massachusetts Board of Registration in Pharmacy, which regulates pharmacists in Massachusetts, has also been invited to testify at a hearing scheduled for November 14.

A spokeswoman did not immediately respond to a question as to whether Coffey had agreed to attend.

Margaret Hamburg, Commissioner of the U.S. Food and Drug Administration, is scheduled to testify.

Hamburg, Cadden and others, including officials from the U.S. Centers for Disease Control and Prevention, have also been invited to testify about the outbreak before the Senate Health, Education, Labor and Pensions Committee at a separate hearing scheduled for November 15.

Meanwhile, NECC's legal team has been busy in federal court defending the company against a mounting number of lawsuits.

NECC lawyers, for example, say NECC did nothing wrong and have been caught in a crossfire of conflicting federal and state laws concerning specialty pharmacies. In addition, NECC lawyers argue various states have themselves enacted differing and in some cases conflicting regulations on the practice of pharmacies.

"Permitted practices in some states may be arguably impermissible manufacturing by FDA and other states," NECC lawyers said Monday in documents filed in U.S. District Court in Massachusetts.

But Peter McGrath said NECC and its attorneys are just buying time to plan how to contend with looming lawsuits and investigations.

Last month, McGrath, a former federal prosecutor, filed suit in state court in Massachusetts seeking to freeze the assets of NECC and its owners, including Cadden. His attachment, filed on behalf of an unnamed New Hampshire man, seeks several million dollars.

NECC wants that case moved to U.S. District Court because of the federal questions involved over what makes a drug manufacturer.

NECC said it expects a Judicial Panel on Multidistrict Litigation to rule within the next two to four months on whether to consolidate a number of lawsuits in one court. The decision could come soon after a hearing is held January 31 in Orlando, Florida.

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Source: AP (Clarke, 11/7)

Hyundai kia repaying buyers for false mileage claims

Bye-bye 40 mpg: Hyundai and Kia are lowering the fuel economy ratings of some 900,000 vehicles due to a “procedural error” made during the Environmental Protection Agency’s testing cycle. Seven different 2013 Hyundai models and different 2013 Kia models will see their ratings drop by anywhere from one to six mpg.

We’ve actually heard about this before: in July, a class-action lawsuit was filed in California against Hyundai for misleading customers by advertising cars’ high highway mpg ratings, not the combined number, which was closer to real-world fuel-economy (and much lower than what was advertised). Now, following an official investigation by the EPA, Hyundai and Kia are adjusting fuel economy figures on the following cars: 2011 Hyundai Elantra and Sonata Hybrid; 2012 Hyundai Accent, Azera, Elantra, Sonata Hybrid, Tucson, and Veloster; 2012 Kia Optima Hybrid, Rio, Sorento, Soul, and Sportage; 2013 Hyundai Accent, Azera, Elantra, Elantra GT, Elantra Coupe, Genesis, Santa Fe, Tucson, and Veloster; and the 2013 Kia Rio, Sorento, Soul, and Sportage.

The decrease in the fuel economy numbers varies pending on the engine, transmission, and driveline. Some of the biggest losers include the 2013 Kia Soul equipped with the 2.0-liter I-4 and automatic, now rated at 23/28 mpg city/highway (down from 26/34 mpg); the 2013 Kia Rio automatic, down from 30/40 mpg to 28/36; the 2013 Hyundai Santa Fe Sport 2.4 with front-wheel drive is down to 21/29 mpg from 22/33 mpg; and the 2013 Hyundai Accent, which now achieves 28/37 mpg instead of 30/40 mpg.

This is a hard hit for Hyundai and Kia, as both companies (especially Hyundai) heavily advertised having numerous 40-mpg models in its lineup. As a compensation for the error, the automakers will be providing current and former owners with debit cards that cover the cost of fuel calculated by the difference in the new and old EPA combined cycles, the price of gas in the owner’s area, and the amount the owner drives.

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Source: Automobile (Nordlicht, 11/2)

Texas Cities Differ on Texting-While-Driving Bans

Barbara Graff, an Odessa city councilwoman, knows the dangers of distracted driving. But that does not mean she wants to pass a law against it.

“I won’t even answer my phone anymore while I’m driving,” Graff said. But last October she voiced opposition to a ban on texting while driving in Odessa, saying the measure was not enforceable.

Although Odessa did not adopt the law, bans on cellphone use while driving are on the rise in cities across Texas, which is one of just 11 states without a statewide law. Austin and San Antonio are among 28 cities that have banned some degree of cellphone use while driving. Penalties include fines of up to $500.

The bans come as increasing evidence shows the dangers of distracted driving. Studies by the Texas Department of Transportation show traffic fatalities linked to some form of cellphone use increased almost 50 percent from 2006 to 2010.

In September, Amarillo banned the use of all mobile devices while driving. According to Mayor Paul Harpole, polls showed 65 percent of residents in Amarillo supported the law.

“To me, it comes down to common sense,” Harpole said. “A lot of people may be able to drive with a phone in their ear, but we have some who can’t.”

Harpole said some Amarillo residents who opposed the ban saw it as an issue of freedom. To Harpole, though, the question of safety was more important. “Today, none of us would think of getting into a car without airbags or seatbelts,” he said. “To me, it’s that kind of issue.”

In June 2011, Gov. Rick Perry vetoed a bill written by state Rep. Tom Craddick, R-Midland, that would have banned texting while driving statewide. In a statement, Perry called the bill “a government effort to micromanage the behavior of adults.” A representative for Craddick said he would try again to pass the bill in the 2013 legislative session.

While Perry and others call such bans government overreach, some object to texting-while-driving laws for practical reasons.

“If you talk to law enforcement,” Graff said, “they ask, ‘How can we enforce this?’” She said enforcing a ban on texting while driving is not feasible because it is often very difficult for officers to know if someone is actually texting.

In Amarillo, the police say catching violators will be easier. Sgt. Brent Barbee of the Amarillo Police Department said the city’s ban on all cellphone use “removes a lot of the challenge” of enforcement. “Any device in the driver’s hands will be a violation,” he said.

Graff said education on the dangers of distracted driving would be more effective in Odessa. A law, she said, could make the situation worse, causing some drivers to take their eyes off the road while trying to hide their texting.

“We could pass an ordinance, pat ourselves on the back, and say we took care of it. But did we?” she said. “We need to use education to stop this.”

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Source: The Texas Tribune (Swartsell, 10/29)