Does a Hospital Have a Brady Obligation to Turn Over Exculpatory Evidence?

Posted on April 2, 2015 by BSW

A recent decision by the United States Court of Appeals for the Tenth Circuit answered whether hospitals under state contract have Brady obligations. Established by the Supreme Court decision of Brady v. Maryland, a Brady obligation imposes on government agents the duty to turn over exculpatory evidence to a requesting criminal defendant. 373 U.S. 83, 83 S. Ct. 1194 (1963). In Tiscareno v. Frasier, the Tenth Circuit held that a hospital did not have an actionable Brady obligation because there was no clearly established constitutional obligation of the hospital to locate and disclose the exculpatory evidence to the criminal defendant. No. 13-4156, 2015 WL 735668, at *1 (10th Cir. Feb. 23, 2015). Continue reading →

Medical Malpractice Liability for Management Companies

Posted on March 10, 2015 by BSW

When can a company that manages a hospital be liable for the medical malpractice of the institution and its physicians? According to one recent New Mexico decision, when its agents knew of pattern of sub-standard conduct and didn’t act to address it. The case involved one physician performing experimental surgery on over 100 patients over a period of years. The decision allowing the claim against the manager was rendered in the hospital’s bankruptcy proceeding, which it filed in an attempt to survive the patients’ claims. Review this article on Insurance News Net for a more complete discussion.

Written by: Greg Frost

Hospital Liability for Employee HIPAA Breaches

Posted on February 13, 2015 by BSW

A hospital employee, who has been “HIPAA-trained” and admits to knowing better, accesses his ex-wife’s new boyfriend’s medical records and posts sensitive information on social media. Is the hospital liable for the employee’s actions?

First, assume that the hospital did nothing wrong. That requires the assumption that the employee was adequately trained, that the employee’s job required that he have access to this data, and that there was no way to otherwise limit the employee’s access. Continue reading →

The Intersection of HIPAA and Negligence: Pharmacist’s Violation Cost Walgreens $1.44 Million

Posted on December 12, 2014 by BSW

On November 14, 2014, the Court of Appeals of Indiana affirmed a $1.44 million judgment against Walgreens Company based on a HIPAA violation committed by a Walgreens pharmacist. Walgreen Co. v. Hinchy, 2014 WL 6130795 at *1 (Ind. Ct. App. 2014). In Walgreen Co. v. Hinchy, Walgreens’ pharmacist Audra Withers looked up the prescription information of Walgreens’ customer Abigail Hinchy. Withers then used the prescription information of Hinchy for personal reasons, which allegedly included allowing Withers’ husband to use the private information to pressure Hinchy into not asking Withers’ husband for child support. Upon figuring out how Withers’ husband obtained the private information, Hinchy contacted Walgreens’ regional office to report the matter.

During the investigation, Withers admitted to purposely accessing the information for personal use. Walgreens confirmed to Hinchy that a HIPAA violation had occurred. Id. Per Walgreens, “Withers received a written warning and was required to retake a computer training program regarding HIPAA.” Continue reading →

Thinking Outside the Country: Recruiting Foreign Physicians

Posted on December 11, 2014 by BSW

In recruiting doctors, hospitals must navigate several minefields which include Stark law and the Anti-Kickback Statute. Yet, a rarely considered issue when recruiting physicians is whether immigration laws have been violated. Generally, non-resident aliens who have completed a residency or fellowship training program in the United States must return to their home country for two years before they can work in the United States. Continue reading →