This month, the Oregon Court of Appeals addressed the comparative fault defense in the context of medical malpractice cases in Son v. Ashland Community Healthcare Services. Sara Burns died while under the medical care of Ashland Community Healthcare Services ("ACHS") after she attempted suicide by overdosing on various drugs. Her mother, as personal representiatve of Sara's estate, brought a wrongful death action against ACHS alleging professional negligence in its treatment of Sara. ACHS raised the comparative fault defense, alleging that Sara failed to inform ACHS of her ingestion of a particular drug that would have changed ACHS' treatment plan and likely prevented her death. The jury returned a verdict for the plaintiff for $740,000, after which the court reduced the award by a percentage because of Sara's comparative fault. Plaintiff appealed.
The Oregon Court of Appeals reversed, addressing for the first time the comparative fault defense in the context of medical malpractice cases. The general rule for comparative fault comes from Fazzolari v. Portland School Dist. No. 1J and has been stated as "whether facts of the case indicate that the plaintiff took some action or failed to take some action which a reasonable person could have foreseen would increase the risk of harm to the plaintiff, and that the plaintiff did indeed suffer harm of the type which could have been foreseen." The Oregon Court of Appeals narrowed the rule in medical malpractice cases to the injury caused by the negligent treatment, not the oringal injury that necessitated the need for treatment. Here, the court found that Sara's negligent conduct occured prior to ACHS' negligent treatment and was therefore not eligible to be considered as comparative fault.
In sum, the court annouced a new rule that, "as a matter of law, conduct that merely creates the need for medical treament cannot cause the type of harm at issue in medical malpratice cases--the injury resulting from the malpractice."
One of the many changes resulting from the Patient Protection and Affordable Care Act is that non-discrimination rules applicable to self-insured health plans for many years are to be extended to insured arrangements effective for plan years beginning after September 22, 2010. However, the Act did not just add "insured health plans" to those rules. No, the Act says that insured plans must comply with rules similar to those applied to self-insured plans. And, since the IRS has not issued any regulations explaining which parts of the rules will be applied the same way and which ones won't, how are insured plans supposed to avoid the excise tax penalties and other sanctions imposed by the Act?
Fortunately, the IRS has issued Notice 2011-1 which delays compliance with the non-discrimination rules until regulations are issued related to this provision of the Act. The Notice also solicits input on several topics regarding how the IRS should implement the statutory mandate, and provides that the other agencies potentially affected (Labor, HHS and Treasury) have all agreed with the IRS position.
A federal district court judge in Virginia has ruled that one of the centerpieces of the health care reform law enacted earlier this year is unconstitutional. Judge Henry Hudson, in Virginia v. Sebelius, found illegal the part of the law mandating that every U.S. citizen maintain a minimum level of health insurance. Although courts have ruled on standing issues in other cases challenging health care reform, this is the first decision addressing the substance of the law.
Several other cases are pending, including one brought by the attorney generals of some 20 states challenging certain financial underpinnings of the law.
The federal government will appeal the decision and it is nearly certain that, absent a legislative change to the challenged portions of the law (making the appeal moot), the Supreme Court will eventually decide the issue.
The Judge severed the provisions he found to be unconstitutional and left in effect the remainder of the law, portions of which will become effective on January 1 for calendar year plans. Employers should therefore continue to prepare for the law's various effective dates.
The U.S. Supreme Court today agreed to review whether a huge employment discrimination class action can proceed against Wal-Mart. The review follows rulings by judges in the Northern District of California and the Ninth Circuit Court of Appeals certifying the largest-ever employment discrimination class action. According to plaintiffs in Dukes v. Wal-Mart Stores, Inc., up to one million or more past and current female employees of Wal-Mart suffered discrimination in pay and promotions.