Protecting Vulnerable Adults While Protecting Their Physicians – A Proposed Statutory Amendment

The Arizona Supreme Court’s recent decision in Delgado v. Manor Care of Tucson AZ, LLC, subjects health care providers to liability for ordinary negligence under the Adult Protective Services Act.  This decision therefore creates a potential new strategy for plaintiffs’ attorneys and subjects providers to more severe consequences than previously available in malpractice suits.  A simple statutory amendment is available to limit this source of liability without impacting plaintiffs’ ability to pursue legitimate malpractice claims. Arizona’s Adult Protective Services Act (A.R.S. §§ 46-451 – 503) was enacted to protect incapacitated adults from caregivers who endanger their lives or health through abuse, neglect, or exploitation. Claims arising out of health care providers’ ordinary negligence, on the other hand, are covered by the Medical Malpractice Act (A.R.S. §§ 12-561 – 573).  Although legislative history is sparse, there is evidence that the legislature never intended APSA to encompass medical malpractice actions.  This position is supported by the legal meanings of the terms “neglect,” as used in the APSA, and “negligence,” which is required for malpractice liability.  Although they share a common root word, the legal definitions of “neglect” and “negligence” are not the … Continue reading

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(Un)Protected Health Information Held for Ransom

Recent experiences of major health care companies offer a reminder of the importance of data security and following a well-written policy for compliance with the HIPAA Privacy Rule. Lithuanian police reported on Tuesday that a hacking group had illegally obtained and published over 25,000 private photos and personal data from a chain of European plastic surgery clinics. According to the report, hackers made the theft known and demanded a $385,000.00 ransom for the data.  When the demands for payment were refused, the information was published on the Internet.  The investigation is in its early stages and it is not clear how many individual patients are affected. Although this breach involves a European provider, not covered by HIPAA, it highlights the value and vulnerability of healthcare data. In fact, there have been reports of similar breaches involving potentially millions of American patients.  Data security experts have estimated that nearly 1 million new malware threats are released every day, with ransomware being the most common type. The HIPAA Privacy Rule (42 C.F.R. Part 164) requires covered entities to implement administrative, physical, and technical safeguards to guard against the breach of protected health … Continue reading

Posted in Health Care, HIPAA, Uncategorized

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Is Your Arbitration Agreement Enforceable?

Health care providers may favor arbitration due to the perception that it is a faster, less expensive alternative to litigation. State and federal policy favors arbitration for the same reasons.  Because of the strong public policy favoring arbitration, doubts as to whether a case is subject to arbitration are resolved in favor of arbitration.  (Arbitration may also provide a desired level of confidentiality by preventing allegations from becoming a matter of public record in court.)  Arbitration agreements, however, are subject to the same defenses to enforceability as any other contract. A recent decision of the Arizona Court of Appeals provides guidance for evaluation of the enforceability of arbitration agreements. Gullett v. Kindred Nursing Centers West, LLC arose out of the plaintiff’s claims that a rehabilitation center had abused and neglected his father, who lived there for the last month of his life.  After the complaint was filed, the defendant moved to compel arbitration pursuant to an agreement signed by the decedent upon admission.  The plaintiff opposed arbitration, arguing that the agreement was substantively and procedurally unconscionable.  After evaluating several aspects of the agreement, the Court held that the agreement was … Continue reading

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