The NFL and NHL’s Ongoing Concussion Crisis

U.S. District Court Judge Anita Brody took a surprising and rare step on January 14, 2014, by denying preliminary approval of the $750 million settlement between the National Football League (NFL) and 20,000 former players and their families for alleged injuries the players sustained during their careers.  Judge Brody wrote in her opinion that she was concerned that “not all retired NFL football players who ultimately receive a qualifying diagnosis or their (families)… will be paid. “  Essentially, the judge was concerned that there is not enough money in the settlement and insufficient analysis to show how the settlement would work. Lawyers not connected with the litigation speculate that the judge’s hold on the settlement was partially based on the fact that more than 70 retired NFL players have filed concussion lawsuits since the proposed settlement was reached in August 2013. Furthermore, there was a public outcry after FRONTLINE aired its special titled “League of Denial” which negatively portrayed the NFL as hiding what it knew about the risks associated with brain injuries to former players.  (See previous blog post.) To further complicate matters, Judge Brody appointed a special master to review financial aspects of the settlement due to potential “double dipping” by some plaintiffs’ attorneys involved in the settlement talks.

Michael McCann of Sports Illustrated (SI)  wrote the parties to the settlement have two options:  negotiate a new proposed settlement or return to litigation.  A new settlement would bring more financial data and documentation to the negotiation table so that both sides could renegotiate terms.  Given the fact that the NFL has annual revenues of approximately $9 to $10 billion, some sports analysts have commented that $750 million seems inadequate to meet the needs of 20,000 former players. The downside of the parties litigating the case is that it could take several years for the litigation to conclude and some retired players need money immediately for their medical and living expenses; and some retired players must contend with collective bargaining agreements and statutes of limitations which may soon run out. The NFL also faces hurdles it would rather avoid, such as having to present evidence of what it knew about the long term effects of head injuries to players and when it knew about the information.  Currently, the NFL has made no admissions about how it handled concussions in the past and it appears it wants to keep it that way.

The National Hockey League (NHL) is also facing its own concussion crisis. The NHL was recently hit with a class action lawsuit from 10 retired players, which now has grown to include over 200 former players, who contend that the NHL failed to protect them from concussions.  The retired NHL players are seeking damages and court approved NHL sponsored medical monitoring of their brain trauma and/or injuries, which they claim they received during their time in the NHL.  The suit also claims that the NHL sponsors a “culture of violence” through its refusal to ban fighting and body checking, and by employing “enforcers” who main job is to fight.  Allan Muir of SI wrote that “It was never a matter of if the NHL would face a concussion lawsuit similar to the one the NFL faces, but a matter of when. “

The Definition of Death

Recent news stories have raised some interesting questions, along with many emotions and much controversy, about the legal definition of death. In light of these highly publicized cases, medical experts have argued for different indicators of death, while judges have intervened in to protect patients’ rights. In one instance,  the issue of when life legally begins is entangled in the question of when it legally ends. As these stories perhaps highlight a void in the law, the question is raised: should there be a better definition of death?

The Case of Jahi McMath

On December 9, 2013, Jahi McMath, a 13-year-old California girl, underwent a tonsillectomy and adenoidectomy in an effort to treat pediatric obstructive sleep apnea. She suffered from cardiac arrest, and on December 12, 2013, was declared brain-dead. Since that time, Jahi’s family has fought to keep her on a ventilator despite several statements made by the hospital treating Jahi, Children’s Hospital and Research Center Oakland (CHO), that “the only thing maintaining this child is a ventilation machine” and “when one’s brain ceases to function, it never restarts”. It was reported that in late December CHO asked the Superior Court of Alameda County to order that the ventilator be removed from Jahi’s body and, after testimony from physicians who concluded that Jahi met the criteria of being brain-dead, the judge found it had no power to stop CHO from terminating life support. However, before the order to disconnect the ventilator was carried out, Jahi’s family through their attorney, Christopher Dolan, filed a complaint for declaratory relief and request for temporary restraining order (TRO) in federal court, requesting that CHO be ordered to continue to keep Jahi on the ventilator and insert a gastric tube and tracheostomy tube so that she may be transferred to another health care provider. On January 6, 2014, the California district court denied the TRO petition as moot, stating that the parties were able to come to an agreement in the parallel state case. That day, CHO released Jahi to the coroner’s office, which then transfered her to the care of her mother, who reported Jahi would be taken to an undisclosed health care facility of the family’s choice.

Though the controversy between CHO and Jahi’s family may have been resolved, at least temporarily, questions remain. Specifically, how did a medical determination of death confirmed by a judge’s order come undone? Moreover, what does this mean for future cases like that of Jahi McMath?

Defining Death

According to the Uniform Law Commission, the Uniform Brain Death Act of 1978, in an attempt to clarify the definition of death as technological advances made traditional determining factors obsolete, defined death as “irreversible cessation of all functioning of the brain, including the brain stem.” However, confusion ensued as some did not interpret this factor alongside the notion of using traditional indicators of death as well, and in 1980 the Uniform Determination of Death Act (UDDA) added the following language as an alternative to the brain death determination: “irreversible cessation of circulatory and respiratory functions.” Most states have adopted the UDDA, including California. A 2010 American Academy of Neurology study confirmed its brain death guidelines, concluding that “[i]n adults, there are no published reports of recovery of neurologic function after a diagnosis of brain death using the criteria…” A clinical report adopted by the American Academy of Pediatrics incorporated additional guidelines for determining brain death in children under 18.

The Definition of Life

In a related story that seems to question the boundaries of life and death from a different perspective, the husband of a pregnant Texas woman, who has been declared brain-dead, is suing the hospital who refuses to take her off life support. In this case, it has been reported that although the family supports the termination of life-sustaining methods, the hospital will not honor those wishes because it claims that the Texas Advance Directive Act prohibits the removal of life-support on a pregnant patient. The woman’s family reportedly argued in court documents that she cannot be the subject of the Texas Act as she is no longer a patient, due to her diagnosis of brain death. Other critics of the hospital’s decision were noted to argue that since the fetus is not viable, the woman, if considered alive, would have a constitutional right to an abortion.

The distress caused by these stories cannot be denied. Yet, in a legal sense, as these stories illuminate the highly controversial issues of life and death, especially in the face of uncertainty created by technological advances, is there an argument to be made for more or less law concerning the shaky ground between life and death?

Kusserow’s Corner: DOJ Intervenes against Health Management Association Hospitals

The Department of Justice (DOJ) has intervened in eight False Claims Act lawsuits against Health Management Associates Inc. (HMA), alleging that HMA billed federal health care programs for medically unnecessary inpatient admissions from the emergency departments at HMA hospitals and paid remuneration to physicians in exchange for patient referrals. The DOJ also joined in the allegations in one of the lawsuits that Gary Newsome, HMA’s former CEO, directed HMA’s corporate practice of pressuring emergency department physicians and hospital administrators to raise inpatient admission rates, regardless of medical necessity, and that this resulted in the submission of inflated or false claims to federal health care programs.

HMA operates 71 hospitals in 15 states: Alabama, Arkansas, Florida, Georgia, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Washington and West Virginia. Last July it was announced that Community Health Services, the second-largest U.S. hospital system, agreed to buy HMA for $3.9 billion in cash and stock. Community Health Services added the HMA hospitals to their existing 135 hospitals.

Complaints also allege that HMA:

  1. improperly admitted patients for scheduled surgical procedures that should have been done on an outpatient basis;
  2. paid kickbacks, either in the form of bonuses or awarded contracts, to physician groups staffing HMA emergency rooms to induce the physicians to induce referrals and admit patients unnecessarily;
  3. provided improper remuneration, both through the provision of free office space and staffing and through direct payments to a physician practice group in exchange for referrals to HMA hospitals;
  4. gave kickbacks to physicians by paying inflated prices for physician-owned assets; and
  5. provided sham medical directorship contracts and selling assets to physicians for below fair market value.

The lawsuits were filed under the qui tam, or whistleblower, provisions of the False Claims Act. The eight lawsuits are pending in the Southern and Middle Districts of Florida, Middle District of Georgia, Northern District of Illinois, Western District of North Carolina, Eastern District of Pennsylvania and District of South Carolina.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on Google+ or LinkedIn.

Copyright © 2014 Strategic Management Services, LLC. Published with permission.

Circuit Split Remains, Deference Afforded to Informal Agency Approvals

The Supreme Court denied California Medical Association’s (CMA) petition for a writ of certiorari that sought review of the Ninth Circuit’s ruling in Managed Pharmacy Care v Sebelius. The question presented to the Supreme Court was whether the Ninth Circuit erred when it gave Chevron, U.S.A., Inc. v Natural Resources Defense Council, Inc. deference to an “implicit and informal” CMS approval of lowered Medicaid reimbursement rates.

As was previously reported, the Ninth Circuit reversed the district court’s preliminary injunction in Managed Pharmacy Care v Sebelius, enjoining the California Medicaid director and CMS from reducing Medicaid reimbursement rates by ten percent. The Ninth Circuit sided with the Third, Fifth, Sixth, and D.C. circuit courts in giving deference to CMS under the Chevron decision. However, the circuit courts are split, as the First, Second, and Eighth Circuits have used a lower level of deference, as set forth in Skidmore v Swift & Co., with regard to informal agency approvals.

CMA’s petition for certiorari argued that the issue presented was important, recurring, and too consequential to not decide. Further, given the lower court split on the level of deference that should be afforded to agency approvals, CMA argued that the Supreme Court’s decision would make an “enormous difference,” as it could impact access to health care for millions of individuals in California alone.