Reflections on the Pending Supreme Court Challenge to the Affordable Care Act in California v. Texas: Part One in a Series

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this first of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone examine the stare decisis effects of the Supreme Court’s initial blockbuster decision involving the ACA. The authors demonstrate several, perhaps surprising, ways that the earlier decision should shape how the Court views the present challenge.

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Hannah v. Naughton, M.D., et al.

Court: Supreme Court of Alabama

Docket: 1190216

Opinion Date: September 25, 2020

Judge: Michael F. Bolin

Areas of Law: Civil Procedure, Health Law, Medical Malpractice

Regina Hannah appealed the grant of summary judgment in favor of Michael Naughton, M.D.; Michael Naughton, M.D., Ph.D., LLC; Terisa Thomas, M.D., and and Terisa A. Thomas, M.D., P.C. (collectively, "the defendants"), on Hannah's claims alleging medical malpractice. In 2005, Hannah was seen by Dr. Thomas, a board-certified general surgeon, for a female health-care examination. Hannah was 32 years old at the time, and complained of fatigue, weight gain, heavy menstrual cycles, cramping, and painful sexual relations. Hannah also reported a significant family medical history of cervical cancer and stated that she was fearful of getting cancer. Hannah stated that her mother, grandmother, and sister had suffered from cervical cancer. Dr. Thomas ordered a number of tests, including a pelvic ultrasound and a Pap smear. Dr. Thomas received the results of Hannah's Pap smear, which indicated an "abnormal" result: "Epithelial Cell Abnormality. Atypical Squamous Cells Cannot Exclude High Grade Squamous Intraepithelial Lesion (HSIL)." Dr. Thomas stated that this was not a diagnosis of cancer but, rather, that she considered it an abnormal finding indicative of an "increased risk" of cancer. Dr. Thomas related to Dr. Naughton that she had a patient she wanted to refer to him for a second opinion following an abnormal Pap smear. Dr. Naughton testified that Hannah chose the most aggressive option for treatment, specifically stating that she wanted "it all out:" a hysterectomy, including her ovaries. Dr. Naughton had Hannah execute a "surgical-awareness" form indicating that she accepted full responsibility for her decision to have the surgery. Hannah underwent surgery; there was no indication of any diagnosis of cervical cancer mentioned in the surgical record. Hannah's surgery was completed without complication. Hannah would have one more follow up appointment with Dr. Naughton; she also met with Dr. Thomas. Frustrated with a lack of response from additional calls to Dr. Naughton's office, Hannah consulted with Dr. Max Austin, a gynecologic oncologist. After review of her medical records, Dr. Austin told Hannah she "never had nor did she have cervical cancer." Hannah then filed suit against Drs. Thomas and Naughton, alleging they breached their standard of care by falsely informing her she had cervical cancer based on the abnormal Pap-smear, and by advising her to undergo a hysterectomy. The Alabama Supreme Court found no reversible error in the trial court's judgment and affirmed it.

QHG of Enterprise, Inc., d/b/a Medical Center Enterprise v. Pertuit

Court: Supreme Court of Alabama

Docket: 1181072

Opinion Date: September 25, 2020

Judge: Tommy Bryan

Areas of Law: Civil Procedure, Health Law, Legal Ethics, Professional Malpractice & Ethics

QHG of Enterprise, Inc., d/b/a Medical Center Enterprise ("QHG"), appealed a circuit court's judgment awarding Amy Pertuit ("Amy") $5,000 in compensatory damages and $295,000 in punitive damages. Leif Pertuit ("Leif") had been married to Deanna Mortensen; they had one child, Logan. Leif and Mortensen divorced in 2007. At some point, Mortensen was awarded sole physical custody of Logan, and Leif was awarded visitation. Leif later married Amy, a nurse. At the time of their marriage, Leif and Amy resided in Mobile, Alabama, and Mortensen resided in Enterprise. Eventually, tensions arose between Leif and Mortensen regarding the issue of visitation. In March 2014, Mortensen began sending text messages to Leif accusing Amy of being addicted to drugs. Around that time, Mortensen visited the attorney who had represented her in divorce from Leif. Mortensen expressed concern that Logan was in danger as a result of the visitation arrangement and asked her attorney to assist with obtaining a modification of Leif's visitation. In April 2014, Mortensen contacted Dr. Kathlyn Diefenderfer, a physician whom QHG employed as a hospitalist at Medical Center Enterprise. Mortensen had been Dr. Diefenderfer's patient, and Dr. Diefenderfer's son played sports with Logan. Mortensen informed Dr. Diefenderfer that Logan was scheduled to ride in an automobile with Amy from Enterprise to Mobile for Leif's visitation and expressed concern regarding Amy's ability to drive, given her belief that Amy was using drugs and had lost her nursing license. Dr. Diefenderfer used a hospital computer to check on Amy's drug prescriptions. After reviewing that information,Dr. Diefenderfer told Mortensen: "All I can tell you is I would not put my son in the car." Mortensen went back to her attorney, informing him that Dr. Diefenderfer had acquired the necessary proof of Amy's drug use. Amy received a copy of the modification petition, and was convinced her private health information had been obtained in violation of HIPAA, and filed complaints to the Enterprise Police Department, the US Department of Health and Human Services, the Alabama Bar Association, and the Alabama Board of Medical Examiners. A grand jury indicted Mortensen and Dr. Diefenderfer, which were later recalled, but the two entered diversion agreements with the district attorney's office. Amy then filed suit alleging negligence and wantonness, violation of her right to privacy, the tort of outrage and conspiracy. The Alabama Supreme Court determined the trial court erred by denying QHG's motion for a judgment as a matter of law with respect to Amy's asserted theories of respondeat superior; ratification; and negligent and wanton training, supervision, and retention because there was not substantial evidence indicating that QHG was liable to Amy as a consequence of Dr. Diefenderfer's conduct under any of those theories. The trial court's judgment awarding Amy $5,000 in compensatory damages and $295,000 in punitive damages was reversed, and judgment rendered in favor of QHG.

Alborzi v. University of Southern California

Court: California Courts of Appeal

Docket: B299067(Second Appellate District)

Opinion Date: September 29, 2020

Judge: Audrey B. Collins

Areas of Law: Business Law, Health Law

Plaintiffs filed suit alleging that defendants entered into an illegal referral and kickback scheme in which USC paid below-market rates for hospitalist services from Concord, and Concord self-referred patients to Elevate, which shared ownership with Concord. Plaintiffs further alleged that when Plaintiff Alborzi complained to management at Verdugo Hills Hospital about the illegal scheme, the hospital stopped referring patients to him and eventually dissolved the on-call panel in retaliation. The Court of Appeal held that the trial court erred by sustaining the demurrer because plaintiffs were not required to exhaust judicial remedies before asserting the causes of action they have alleged here. The court also found that plaintiffs' complaint alleged sufficient facts to support causes of action for violations of Health and Safety Code section 1278.5 and Business and Professions Code section 17200, et seq., and therefore the demurrer should have been overruled as to those claims. The court further found that plaintiffs' cause of action for violation of Government Code section 12653 failed to allege sufficient facts to state a cause of action, but leave to amend was warranted. Finally, the court found that plaintiffs have abandoned the three causes of action they did not address on appeal. Accordingly, the court reversed the judgment and remanded the action with directions.

Atlanta Womens Specialists, LLC et al. v. Trabue et al.

Court: Supreme Court of Georgia

Dockets: S19G1138, S19G1140, S19G1141, S19G1142, S19G1143

Opinion Date: September 28, 2020

Judge: Boggs

Areas of Law: Civil Procedure, Health Law, Medical Malpractice

The Georgia Supreme Court granted certiorari to the Court of Appeals in five consolidated appeals to address two discrete issues – one related to pleading vicarious liability, and the other related to vicarious liability and apportionment. In 2009, Shannon Trabue suffered a catastrophic brain injury resulting from pulmonary edema leading to full cardiac arrest within days of giving birth to her daughter at Northside Hospital in Atlanta. At the hospital, Shannon was treated by physician-employees of AWS, including Dr. Stanley Angus and Dr. Rebecca Simonsen. Kenneth Trabue (husband) and the bank serving as his wife’s conservator (Plaintiffs) later filed a medical malpractice action naming as defendants only Dr. Angus and Atlanta Women’s Specialists, LLC (AWS), although the complaint contained allegations regarding Dr. Simonsen’s conduct and alleged that AWS was vicariously responsible for the acts and omissions of both Dr. Angus and Dr. Simonsen. The complaint did not allege any independent acts of negligence on the part of AWS. The issues the appellate court presented for the Supreme Court's review were: (1) whether the Court of Appeals erred in holding that plaintiffs sufficiently pled a claim for vicarious liability against AWS based on Dr. Simonsen's conduct; and (2) whether the appellate court erred in holding that, to obtain apportionment of damages with regard to the negligence of Dr. Simonsen, the defendants were required to comply with OCGA 51-12-33 (d) by filing a pretrial notice of nonparty fault? The Supreme Court answered both questions in the negative and affirmed the Court of Appeals’ judgment.

Norman et al. v. Xytex Corp., et al.

Court: Supreme Court of Georgia

Docket: S19G1486

Opinion Date: September 28, 2020

Judge: Peterson

Areas of Law: Civil Procedure, Consumer Law, Health Law

Wendy and Janet Norman alleged that Xytex Corporation, a sperm bank, sold them human sperm under false pretenses about the characteristics of its donor, and that the child conceived with that sperm once born suffered from a variety of impairments inherited from the sperm donor. The Court of Appeals affirmed the dismissal of all but one of the Normans’ claims on the basis of Etkind v. Suarez, 519 SE2d 210 (1999), and Atlanta Obstetrics & Gynecology Group v. Abelson, 398 SE2d 557 (1990). The Georgia Supreme Court granted review, and held that claims arising from the very existence of the child were barred, but claims arising from specific impairments caused or exacerbated by defendants’ alleged wrongs could proceed, as could other claims that essentially amounted to ordinary consumer fraud. Therefore, the Court affirmed in part, reversed in part, and remanded the case for further proceedings.