Court Holds Alteration of Medical Record does not Create Inference of Falsification

Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707

We're going to begin exploration of this recent Illinois decision, by referencing one of our favorite movies: The Verdict (1982) starring Paul Newman. In the movie, Newman's character, lawyer Frank Galvin, wins a medical malpractice trial on behalf of Deborah Anne Kaye against St. Catherine Leboure Hospital. During the trial, Galvin elicits testimony from Nurse Kaitlin Costello Price that the patient had eaten just one hour before a surgery during which she aspirated, resulting in her paralyzation and permanent vegetative state. On cross-examination from defense counsel for the Hospital, Nurse Kaye produces a photocopy of the original medical record which proves she had noted the time at which the patient last ate, as well as that the record had been altered by an anesthesiologist, Dr. Robert Towler, to conceal that fact. While the able defense attorney convinces the trial judge to suppress evidence of the altered record—as well as to issue an admonishing instruction to the jury to disregard all Nurse Price's testimony—the jury renders a guilty verdict, and even asks if it can increase the amount awarded to Mrs. Kaye's family.

With the advent of electronic medical records and audit trails, the ability of healthcare providers to deliberately alter medical records with the intention of concealing harmful information—all without being noticed—is limited at best. But what happens when a known alteration of a medical record calls into question the validity of a material fact? Is evidence of the alteration admissible? Does such evidence create an inference of falsification? These issues were addressed in Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707. More ›

Provider Defending a ZPIC Audit Fights Back With Significant Victory at Fifth Circuit

Imagine as a lawyer having to tell your client that the practice that they spent their career building may very well go bankrupt, without even the chance to have their day in court. That was exactly the situation at issue for a medical practice subject to a ZPIC audit. At issue was the ability of CMS to collect on alleged overpayments before final adjudication.

What the practitioner did in a case decided by the Fifth Circuit a few weeks ago provides a game plan for all providers confronting similar circumstances. In Family Rehabilitation Inc. v. Azar, attorneys representing the practice sought an injunction against CMS precluding the agency from recouping the alleged overpayment until the appeal had been decided by the Administrative Law Judge. The injunction was dismissed at the lower court level, but the group appealed the case and won. More ›

OIG Targets Chiropractors Yet Again in Report Recommending Aggressive Audit Procedures

Unsatisfied with prior efforts to curtail Medicare billing of chiropractic services, the Office of Inspector General (OIG) is doubling down by targeting chiropractors yet again. In 2013, the OIG estimated that $358.8 million or approximately 82% of all money paid by Medicare for chiropractic services was unallowable and issued instructions to CMS to use more scrutiny in paying for chiropractics services.   More ›

Reviewing Important Illinois Healthcare Court Rulings: Relation Back Doctrine

In our final post reviewing recent Illinois court decisions that made a significant impact on healthcare law in Illinois, we review Simpkins v. HSHS Medical Group, Inc., 2017 IL App (5th) 160478. More ›

Reviewing Important Illinois Healthcare Court Rulings: Evidence of Expert's Personal Practice Inadmissible

In Swift v. Schleicher, 2017 IL App (2d) 170218, plaintiff sought to impose liability on Defendant physician after he perforated Plaintiff's small bowel during a laparoscopic hysterectomy and failed to diagnose the perforations until four days later. Defendant attempted to introduce evidence that Plaintiff's expert perforated a patient's bowel during a 1989 procedure. More ›

Reviewing Important Illinois Healthcare Court Rulings: One Year Limitation to Provide a 2-622 Written Report

In Horlacher v. Cohen, 2017 IL App (1st) 162712, the Court held that Plaintiff's Third Amended Complaint was properly dismissed when she failed to include a Section 2-622 written report concluding that a "reasonable and meritorious cause" for her action existed. Plaintiff, appearing pro se, had previously filed three other versions of the Complaint without attaching the required Section 2-622 written report. More ›

Reviewing Important Illinois Healthcare Court Rulings: Lack of Privileges to Perform Procedure Inadmissible to Prove Breach

We continue our look at recent Illinois court rulings impacting health care, with a review of Arient v. Alhaj-Hussein, 2017 IL App (1st) 162369.

In this case, plaintiffs sought damages from defendant physician and his employer after the patient became paraplegic following a celiac plexus block procedure. Plaintiff attempted to present evidence that defendant physician lacked privileges to perform a celiac plexus block and therefore breached the standard of care. The Court held that evidence of defendant physician’s lack of privileges was inadmissible as there was no statute requiring him to obtain privileges before performing such a procedure. Furthermore, whether defendant physician possessed privileges to perform the procedure was irrelevant as such evidence did not tend to make the allegation that he deviated from the standard of care more or less probable.

Reviewing Important Illinois Healthcare Court Rulings: Evidence of Malpractice Insurance Generally Inadmissible

In our second of a series of posts looking at the impact of several recent court rulings on healthcare law in Illinois, we look at The Private Bank v. Silver Cross Hospital and Medical Centers, 2017 IL App (1st) 161863. In this case, the plaintiff alleged that an emergency room physician breached the standard of care by negligently delaying to treat her fiancé, who suffered an anoxic brain injury while admitted to the ICU for pneumonia. Plaintiff sought damages including loss of consortium and loss of a chance to marry, which were dismissed as Illinois does not recognize claims for the loss of a chance to marry or loss of consortium on behalf of a patient’s fiancé.  More ›

Reviewing Important Illinois Healthcare Court Rulings: Doctrine of Apparent Agency

By the close of last year, the Illinois Supreme Court and various Illinois Appellate Court Districts had published a series of decisions that addressed a variety of health law topics, from apparent agency to discovery practice.

Since these decisions significantly impact healthcare law in Illinois, we are going to explore them in detail with a series of posts this month. Our first post in the series looks at the Illinois Supreme Court decision of Yarbrough v. Northwestern Memorial Hospital, 2017 IL App 121367. More ›

4-1-1 on Telehealth: What the New Illinois Telemedicine Law Means for Hospitals and other Healthcare Providers

Telehealth is a burgeoning, technology-based treatment delivery mechanism that allows healthcare providers to remotely monitor patients, provide real-time interactive care via video technology, and receive or transmit medical data using store-and-forward technology. With benefits such as increased access to care, reduced healthcare costs, and enhanced care coordination, telehealth is gaining wider use and popularity among hospitals and other health care providers in the United States.

This growth has been accompanied by greater regulatory scrutiny. In 2017, over 30 states amended their existing telehealth laws. In some states, these updates became effective on January 1, 2018. The Center for Connected Health Policy maintains a complete listing of the approved state telehealth legislation in 2017, which can be found here.

In Illinois, 2017 saw passage of the Illinois Telehealth Act, the first legislative guidance to telehealth service providers in Illinois regarding the appropriate scope and standards of care for the provision of telehealth services. The new law requires “Health Care Professionals” — defined to include physicians, physician assistants, optometrists, advanced practice nurses and some mental health providers—to practice within the scope of their respective licenses and to follow the same standard of care that is applied to in-person services.  More ›

Subscribe via Email