PIN NUMBER: ___________________

Grading Guidelines here

General Instructions

1. Be sure to place your exam number/PIN number on all blue books and on this exam booklet.
2. This is a three-hour, open-book examination. You may consult only the assigned texts (casebook, supplement), class handouts, your class notes, and your own outline (including an outline that you prepared with your study group, if any).
3. The exam consists of one 2-hour essay question (to be answered in the blue book) and a series of multiple-choice/short-essay questions (to be answered in the exam booklet).
4. If you believe that insufficient facts are provided in order to resolve an issue, identify explicitly those additional facts that would be necessary for your analysis.
5. If you are going to graduate in December 2001, please indicate that on the cover of your first blue book.
6. Please number your blue books “1 of 3", “2 of 3,” “3 of 3,” e.g.
7. At the end of the exam, please be sure:

• to turn in all blue books that contain your answers;
• to turn in this exam pamphlet; and
• to sign the sign-out sheet at the front of the room.

Question I
2 hours

Debra Payshend (“Payshend”) was pregnant with her second child when her obstetrician, Dr. Patricia Treitel, informed her that she had gestational diabetes and was carrying a macrosomic (i.e., abnormally large) baby. She had a history of gestational diabetes during the pregnancy of a previous child born with complications of macrosomia and shoulder dystocia (a condition in which an infant's shoulder becomes lodged against the mother's pelvic bone).

Dr. Treitel is a physician with Lone Star Medical and Surgical Associates (“Lone Star”), a two-physician group practice. Lone Star has a fully capitated contract with Southwest IPA, which in turn has a contract with BestCare, an HMO. BestCare contracted with Metropolitan Health and Life Insurance Co. (“Metropolitan”), Payshend's employer, to provide hospital and medical services to Metropolitan employees. Metropolitan's employee health benefit plan is self-insured.

After the diagnosis of gestational diabetes was made, Payshend had an uneventful course until the 35^{th week. Then, on three separate occasions, she experienced sharp contractions and went to St. Andrew’s Medical Center, where she planned to have her baby, only to be told that she was in false labor and sent back home. She discussed hospital bed-rest and continuous fetal monitoring with Dr. Treitel. Dr. Treitel agreed that bed-rest and monitoring -- either at home or in a hospital setting, as long as 24-hour nursing was available -- was medically indicated. BestCare, on the other hand, disagreed that Payshend's condition necessitated round-the-clock nursing care, monitoring, or bed-rest and refused to authorize payment. Dr. Treitel appealed the denial to the medical director of BestCare, Dr. Ellis, a retired ophthalmologist, who affirmed the denial.}

During her 38th week, Payshend went into active labor. She called Dr. Treitel who told her to come into the emergency room at St. Andrew's. Payshend said she would rather go to Hugely Hospital, which was only 10 minutes away, rather than St. Andrew's, which was 25 minutes away. Dr. Treitel told Payshend to start driving to Hugely, that she would call Hugely to alert them that Payshend was on her way, and that she would meet Payshend there. Dr. Treitel called Hugely, which in turn called BestCare for authorization. BestCare, through Dr. Ellis, the medical director, refused to approve payment for services at Hugely, because Hugely is not in the BestCare hospital network: out-of-network hospital care is a covered benefit only for emergencies, and Payshend had not been certified by her physician to have an emergency condition. Hugely's emergency room coordinator called Dr. Treitel, who then called Payshend on her cell phone and told her to keep on driving past Hugely and to go to St. Andrew's emergency room.

Dr. Treitel met Payshend in the St. Andrew's emergency room and told her that there were no available labor and delivery rooms upstairs, but as soon as one opened up, Dr. Treitel would have Payshend moved upstairs. Dr. Treitel checked on Payshend twice more during the early stages of delivery.

The delivery progressed very rapidly after Dr. Treitel left the last time. Emergency department policy required that a nurse remain with the patient once her labor and delivery reached this stage, but the hospital was short-staffed that night, and the nurse who was assigned to Payshend left her to attend to another emergency. An emergency page was eventually sent out for any available doctor to assist in the delivery. The page was repeated twice at two-minute intervals, indicating that none of the physicians with coverage (i.e., emergency on-call) responsibilities returned the page. Dr. Douglas MacNyfe was on the labor and delivery floor when the page was sent out, and although he had never treated or seen Payshend before, was not on call, and was neither a member of Lone Star nor affiliated in any manner with BestCare, he answered the third page and went down to the emergency room.

When Dr. MacNyfe arrived at Payshend's delivery room in the ER, a nurse was supporting the baby's head and told Dr. MacNyfe that Payshend was about to deliver. The indications of shoulder dystocia were present. Following several unsuccessful attempts of standard maneuvers to deliver the baby, Dr. MacNyfe felt for the posterior arm of the baby and swept it across the baby's chest and delivered the baby's arm. Payshend then delivered the anterior shoulder and the rest of the baby. Dr. MacNyfe was in Payshend's delivery room for approximately six minutes. Dr. Treitel arrived at the end of the delivery and assumed care of Payshend and Payshend's baby, Colby. As a result of the labor and delivery process, the soft tissues and nerves of Colby's right upper extremity, neck, and shoulder were injured, leaving Colby with permanent neurological impairment and paralysis of his right upper extremity and shoulder girdle.

Payshend has come to your law firm to discuss the possibility of suing to recover for the injuries to her baby. After discussing these events with Payshend, the partner in charge has asked for your analysis of a number of issues. Please answer each question in separately labeled sections of your blue book.

A.

In addition to the above facts, the partner tells you that Hugely Hospital and St. Andrew's both participate in the Medicare program and Ms. Payshend is not a Medicare beneficiary. Does Payshend have an EMTALA claim against Hugely Hospital, Dr. Treitel, Dr. MacNyfe, or St. Andrew's? In addition to the statutory language in your casebook, EMTALA contains the following provisions:

^1395dd.

^{* * *}

^{(e) Definitions In this section:}

^{(1) The term ''emergency medical condition'' means -}

^{(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in -}

^{(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,}

^{(ii) serious impairment to bodily functions, or}

^{(iii) serious dysfunction of any bodily organ or part; or}

^{(B) with respect to a pregnant woman who is having contractions -}

^{(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or}

^{(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child. * * *}

^{(3)(A) The term ''to stabilize'' means, with respect to an emergency medical condition described in paragraph (1)(A), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, with respect to an emergency medical condition described in paragraph (1)(B), to deliver (including the placenta). * * *}

Consider all reasonable objections to the proposed EMTALA claims and analyze the likelihood of prevailing on the merits.

B.

The firm plans to sue Dr. Treitel and Dr. MacNyfe for medical malpractice. On what theories (other than EMTALA) might St. Andrew's also be sued in connection with Colby's birth injuries? Assess the likelihood of prevailing on each. Indicate what additional facts, if any, will be needed from the client and from St. Andrew's in order to answer this question.

C.

The partner in charge is concerned about a possible defense for Dr. MacNyfe under the state's Good Samaritan statute. The Good Samaritan law provides as follows:

^{Liability for Emergency Care}

^{Sec. 1. (a) A person who in good faith administers emergency care at the scene of an emergency but not in a hospital or other health care facility or means of medical transport is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent.}

^{(b) This section does not apply to care administered:}

^{(1) for or in expectation of remuneration; or}

^{(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.}

^{(c) If the scene of an emergency is in a hospital or other health care facility or means of medical transport, a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, provided that this subsection does not apply to care administered:}

^{(1) by a person who regularly administers care in a hospital emergency room unless such person is at the scene of the emergency for reasons wholly unrelated to the person's work in administering health care; or}

^{(2) by an admitting or attending physician of the patient or a treating physician associated by the admitting or attending physician of the patient in question.}

^{(d) For purposes of Subsections (b)(1) and (c)(1), a person who would ordinarily receive or be entitled to receive a salary, fee, or other remuneration for administering care under such circumstances to the patient in question shall be deemed to be acting for or in expectation of remuneration even if the person waives or elects not to charge or receive remuneration on the occasion in question.}

^{Sec. 2. [omitted]}

The partner in charge has a sworn affidavit from Dr. MacNyfe. In it, the physician states that (1) he did not submit a bill for the delivery of Colby; (2) he has never billed for any emergency delivery of a nonpatient; (3) that he has never heard of a physician in his community who has ever billed for such a delivery; and (4) that he regards the submission of a bill for such services to be unethical. In addition, you should know that although Dr. MacNyfe was not under contract with BestCare, the member benefits in the BestCare plan provide for payments of emergency medical services by physicians outside the plan.

(1) Will the Good Samaritan law defeat Payshend's medical malpractice claim against Dr. MacNyfe?

(2) Regardless of your answer to the preceding question, the partner-in-charge also wants to know whether the Good Samaritan law is pre-empted by ERISA, since the medical services provided by Dr. MacNyfe are covered under Metropolitan's employee benefit plan.

D.

Dr. Ellis is licensed to practice medicine in this state. The partner in charge is considering filing a complaint on behalf of Payshend with the State Board of Medical Examiners complaining of unprofessional conduct in connection with his refusal of authorization to deliver her baby at Hugely and for his refusal to authorize payment for bed-rest and 24-hour monitoring. If the Board commences a disciplinary proceeding in connection with his conduct as medical director, will Dr. Ellis prevail on an ERISA defense?

 

Part II
1 hour

Instructions: This part of the exam consists of multiple-choice questions with space to provide a short explanation of your reasons for choosing one option or not choosing the others. You will receive 3 points for choosing the correct option and up to 7 points for your explanation. If you choose “More than one of the above” as your answer, you must indicate which of the answers are covered by your choice.

 

Facts for Questions 1 & 2:

Hospital X is a tax-exempt, not-for-profit health care system located in City A, State of Texas. Hospital X has three locations at which medical services are provided. Hospital X's primary service area encompasses not only City A, but a ten-county rural area in southwestern Texas covering over 8,000 square miles. Many of the counties within Hospital X's primary service area are rural or contain medically underserved areas and populations. Hospital X is the only provider of radiation oncology within its primary service area. Moreover, within Hospital X's primary service area, there is only one other provider of dialysis services, and there are only two other providers of cardiac rehabilitation services.

Public transportation within Hospital X's primary service area is very limited. Within the City A city limits, there is one taxi service, which has five or fewer vehicles, and a single "Handibus," which runs on a set schedule and provides transportation to handicapped individuals. No public transportation is available outside the City A city limits.

Under Hospital X's free transportation policy, Hospital X uses two of its own vehicles to provide free one-way or round-trip general transportation services between Hospital X and each eligible patient's residence. Transportation is only provided to patients who reside within Hospital X's primary service area or for whom Hospital X is the nearest provider of the prescribed treatments. To be eligible for the free transportation services, a patient must: (i) have been referred to Hospital X for an extended course of treatment involving chemotherapy, dialysis, radiation therapy, cardio/pulmonary rehabilitation treatment, or certain similar services; (ii) be unable to provide his or her own transportation and have no other regular and reliable means of transportation (public or private); and (iii) be at significant medical risk if treatment is not provided.

Hospital X does not charge the patient or any third party payor for the transportation services. General transportation, such as the type offered by Hospital X, is not reimbursable under any federal health care program. Hospital X has certified that the costs of the free transportation services will not be claimed directly or indirectly on any federal health care program cost report or claim or otherwise shifted to any federal health care program.

Hospital X has not, and will not, market or advertise the availability of its free transportation services. Hospital X's hospital staff are instructed that, in the course of arranging for extended courses of treatment, they should be alert for those patients who indicate an inability to obtain regular and reliable transportation to and from Hospital X, obtain information from the patients about their particular circumstances, and recommend such patients to the appropriate department director for review. If the department director determines that the patient meets the eligibility requirements described above, the department director offers free transportation services to the patient, and upon acceptance of the offer, refers the patient to the Patient Transportation Department. The Patient Transportation Department prioritizes the referred patients' requests based upon medical need, travel distance, the number of other patients needing transportation, and the time of treatment. Hospital X has certified that neither referrals made by Hospital X's hospital staff, decisions made by department directors, nor decisions made by the Patient Transportation Department will be based, directly or indirectly, upon the patient's ability to pay for the underlying medical services or the existence, nature, or extent of the patient's insurance coverage.


Question 1.

Which of the following statutes is arguably violated by the free-transportation policy?

a. Stark II

b. Federal False Claims Act

c. Antikickback statute

d. Internal Revenue Code's intermediate sanctions law

e. More than one of the above

f. None of the above

Explain (typists: limit your answers to approximately 200 words):

^{{space provided here for 40-line answer}}

 

Question 2.

With respect to Hospital X's community benefit and charity care obligation under state law, which of the following statements is correct:

a. Hospital X will be able to claim the costs of providing free transportation as charity care.

b. Hospital X will be able to claim the costs of providing free transportation as community benefits other than charity care.

c. Statement a. may be correct, but only if Hospital X modifies its free-transportation policy.

d. To the extent Hospital X's costs of providing free transportation are reflected in the calculation of its cost-to-charge ratio, those costs will increase the dollar value of all other community benefits, including charity care, provided by Hospital X.

e. More than one of the above.

Explain (typists: limit your answers to approximately 200 words):

^{{space provided here for 40-line answer}}

 

Question 3.

Dr. Allen is an internist about half of whose patients are Medicare Part B beneficiaries. She accepts assignment with respect to her services for some Medicare patients, but not for others. Which of the following statements is correct:

a. She can balance-bill any of her Medicare patients, but she is limited to 109.25% of the Medicare approved amount for her services.

b. She can balance-bill Medicare patients as to whom she does not accept assignment, but she is limited to 115% of the Medicare approved amount for her services.

c. She can engage in private contracting with any of her Medicare patients, but if she does it for one, she has to do it for all Medicare patients, for a period of two years.

d. She can engage in private contracting with the Medicare patients as to whom she does not accept assignment, but if she bills the Medicare program for any services for any Medicare patients during the next two years, she is prohibited from collecting from either her patients or the Medicare program for patient care for the remainder of the two years.

e. More than one of the above,

f. None of the above.

Explain (typists: limit your answers to approximately 200 words):

^{{space provided here for 40-line answer}}

 

Question 4.

Dr. Bennett is an anesthesiologist whose application for staff privileges at Our Sister of Perpetual Responsibility Medical Center has been denied. The Credentials Committee of the medical staff reviewed his application, contacted all listed references, examined his residency personnel files, and looked over his medical-school transcript, among other peer-review activities. On the basis of their review of the paperwork, they recommended to the Executive Committee of the medical staff that Bennett's application be denied. When he learned of the recommendation, he requested a hearing at which he or his counsel would be present, as well as an opportunity to introduce additional evidence into the record. His requests were denied. The Executive Committee then recommended denial to the hospital's board of directors, which voted unanimously to deny the application.

Bennett is convinced his application was turned down because the physicians who are currently in the Department of Anesthesiology do not want competition. Bennett has sued the medical staff, the hospital, and the board for violations of the federal antitrust laws and has requested monetary damages as well as declaratory and injunctive relief.

Choose the most correct statement:

a. The Noerr-Pennington doctrine probably provides a complete defense.

b. The state-action doctrine probably provides a complete defense.

c. The Health Care Quality Improvement Act probably provides a complete defense.

d. The Health Care Quality Improvement Act probably provides a partial defense.

e. The Health Care Quality Improvement Act probably provides a partial defense if the hospital did a search of the National Practitioner Data Bank.

f. The Health Care Quality Improvement Act probably does not provide a defense because the notice and hearing procedures accorded Dr. Bennett were per se inadequate.

Explain (typists: limit your answers to approximately 200 words):

^{{space provided here for 40-line answer}}

 

^{Examination ends here}