Verdicts

On appeal, plaintiff again asserted subject matter jurisdiction in the Court of Federal Claims under the Tucker Act, which provides as follows: “The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. ' 1491(a)(1). The appellate court pointed out, however, that judicial review of claims arising under the Medicare Act is pursuant to 42 U.S.C. ' 405(g), which is made applicable to the Medicare Act by 42 U.S.C. ' 1395ii, and which provides, in relevant part, that after a hearing and final decision, an aggrieved person may commence a civil action after the mailing of notice of the decision, and that such action “shall be brought in the district court of the United States … ” Thus, although Tucker Act jurisdiction might have applied but for Congress' action, Congress had expressly placed jurisdiction of issues arising under the Medicare Act in the district courts.

Plaintiff next argued that her claim did not “arise under” the Medicare Act because there was no dispute regarding the decedent's eligibility for Medicare benefits and because the government never claimed that it overpaid or was overcharged for Medicare benefits. As her claim did not implicate a dispute as to the amount of benefits the decedent was entitled to, plaintiff claimed that there had been no requisite “initial determination” in accordance with section 1395ff or 1395gg that would trigger the need to seek administrative appeal. For its part, the government argued that plaintiff's action was a challenge to the right of Medicare to recover from tort liability settlements any conditional payments made on the beneficiary's behalf. Under these circumstances, any court adjudicating plaintiff's claim would have to “analyze the full scope and extent of a Medicare beneficiary's entitlement to benefits and interpret the Medicare Secondary Payer provisions of the Medicare Act.” (Br. of Appellee 14-15.) Consequently, according to the government, plaintiff's claim must be viewed as “arising under” the Medicare Act such that Wilson was required to exhaust her administrative remedies under the Medicare Act and then proceed to district court. She had done neither of these things.

The appellate court sided with the government, finding that plaintiff's claim presented precisely the kinds of questions that are meant to be addressed under the scheme for administrative and judicial review that is contemplated by the Act: what a given provision of the Act means and what conduct is covered by that provision. Thus, if plaintiff was dissatisfied with HHS's determination that the receipt of proceeds from the malpractice settlement constituted an overpayment, she had available to her the administrative review process provided by the Medicare Act, which pre-empted jurisdiction by the Court of Claims under the Tucker Act.

Constitutional Law Claim Fails for Lack of 'State Action'

The mother of a severely mentally and physically handicapped patient who voluntarily committed him to the care of the District of Columbia could not after his death bring a claim pursuant to 42 U.S.C. ' 1983 for deprivation without due process of her child's right to proper care as the medical decisions made in his case could not be viewed as “state actions” so as to permit plaintiff to bring a claim of constitutional deprivation. Hanna v. District of Columbia, 2005 U.S. Dist. LEXIS 6320 (D.Md. 4/13/05).

Theorizing that the allegedly inadequate health care provided to her severely developmentally disabled adult son at a private residential treatment facility caused his death and thereby deprived him of a liberty interest protected by his right to substantive due process, plaintiff Wanda Hanna brought a damages action pursuant to 42 U.S.C. ' 1983 and state law against the government of the District of Columbia and Shorehaven Inc., a licensed private agency providing residential and day program care for developmentally disabled individuals. As a matter of law, however, although the District paid the costs for the deceased's care and treatment at a facility operated by Shorehaven, and although the District monitored such care and treatment through judicial review proceedings, the quality or adequacy of the medical care afforded the deceased before his death lacked a sufficient nexus to “state action” to justify the constitutionalization of his entitlement to reasonably adequate medical care from Shorehaven. Consequently, plaintiff's attempt to convert a professional malpractice claim into a claim of constitutional magnitude failed and summary judgment was granted in favor of defendants with respect to the due process claim.

Unprofessional But Unintentional Conduct Not Sanctioned

In this Federal Tort Claims action in which the plaintiffs claimed that the defendants, including a doctor funded through (and thus deemed employed by) the defendant United States, committed medical malpractice leading to the death of Timothy Hansen, plaintiffs moved for but were denied sanctions against the United States for its actions in causing their principal liability expert witness to withdraw as an expert witness. Hansen v. U.S., 2005 U.S. Dist. LEXIS 8524 (N.D. Ohio 5/6/05).

After retaining Dr. Michael Fine, plaintiffs informed the government that they had employed him. Plaintiffs provided a copy of Dr. Fine's curriculum vitae with their disclosure notice. That document showed that Dr. Fine is employed by the VA Pittsburgh Healthcare System, and gives his VA Healthcare office address.

Government counsel did not review Dr. Fine's curriculum vitae until after his report had been received and preparations were being made to take his deposition. More than 3 months after Dr. Fine's curriculum vitae put the government on notice of his employment, government counsel concluded that Dr. Fine's testimony might contravene a provision of the Code of Federal Regulations barring testimony by government employees in cases in which the United States is a party.

The government's counsel did not notify plaintiff's counsel of the possible problem with Dr. Fine's testimony, but instead sought an ethics opinion from government ethics counsel. In turn, instead of responding to the inquiry from government counsel about Dr. Fine's employment status and the effect of the regulation, the ethics counselor e-mailed an ethics opinion about the regulation to Dr. Fine and advised him of the regulation and its significance. In addition, the e-mailed communication notified Dr. Fine that his participation as an expert violated the regulation, that he should “take immediate action to withdraw as an expert witness” and that he should confirm his compliance with that directive by return e-mail. Dr. Fine did withdraw from the case.

The court noted that because the government did not contact plaintiff counsel about this issue and instead went directly to Dr. Fine, plaintiff's counsel was denied the opportunity to consult with Dr. Fine, who might have remained willing to testify had he been given the opportunity to seek a waiver to the prohibition against government employees testifying against the United States. However, because the government's actions were unintentional, the court found that while they were unprofessional, they were not sanctionable.

Suit Opposing Recoupment of Medicare Payments Filed in Wrong Court

The U.S. Court of Appeals for the Federal Circuit upheld dismissal of a lawsuit filed in the Court of Federal Claims under Tucker Act jurisdiction because the issues raised in the suit arose under the Medicare Act, which places jurisdiction of claims arising under it exclusively in the federal district courts. Wilson v. U.S., 2005 U.S. App. LEXIS 6816 (Fed. Cir. 4/21/05).

Prior to his death, plaintiff's husband received medical services that were paid for by Medicare. Following his death, the estate brought a medical malpractice action against a hospital and two doctors. After the estate settled the action and received payment from the defendants, the Department of Health and Human Services (HHS), on behalf of Medicare, claimed entitlement to a portion of the settlement, which plaintiff paid. She then filed suit in the U.S. Court of Federal Claims to recover the payment. In the suit, she contended that the government's claim against her husband's estate was improper and therefore constituted an illegal exaction. The Court of Federal Claims dismissed the suit, ruling that it lacked jurisdiction under the Tucker Act because plaintiff's claim arose under the Medicare statutes and jurisdiction over such claims is vested exclusively in federal district court. Wilson v. U.S. , 58 Fed. Cl. 760 (2003).

On appeal, plaintiff again asserted subject matter jurisdiction in the Court of Federal Claims under the Tucker Act, which provides as follows: “The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. ' 1491(a)(1). The appellate court pointed out, however, that judicial review of claims arising under the Medicare Act is pursuant to 42 U.S.C. ' 405(g), which is made applicable to the Medicare Act by 42 U.S.C. ' 1395ii, and which provides, in relevant part, that after a hearing and final decision, an aggrieved person may commence a civil action after the mailing of notice of the decision, and that such action “shall be brought in the district court of the United States … ” Thus, although Tucker Act jurisdiction might have applied but for Congress' action, Congress had expressly placed jurisdiction of issues arising under the Medicare Act in the district courts.

Plaintiff next argued that her claim did not “arise under” the Medicare Act because there was no dispute regarding the decedent's eligibility for Medicare benefits and because the government never claimed that it overpaid or was overcharged for Medicare benefits. As her claim did not implicate a dispute as to the amount of benefits the decedent was entitled to, plaintiff claimed that there had been no requisite “initial determination” in accordance with section 1395ff or 1395gg that would trigger the need to seek administrative appeal. For its part, the government argued that plaintiff's action was a challenge to the right of Medicare to recover from tort liability settlements any conditional payments made on the beneficiary's behalf. Under these circumstances, any court adjudicating plaintiff's claim would have to “analyze the full scope and extent of a Medicare beneficiary's entitlement to benefits and interpret the Medicare Secondary Payer provisions of the Medicare Act.” (Br. of Appellee 14-15.) Consequently, according to the government, plaintiff's claim must be viewed as “arising under” the Medicare Act such that Wilson was required to exhaust her administrative remedies under the Medicare Act and then proceed to district court. She had done neither of these things.

The appellate court sided with the government, finding that plaintiff's claim presented precisely the kinds of questions that are meant to be addressed under the scheme for administrative and judicial review that is contemplated by the Act: what a given provision of the Act means and what conduct is covered by that provision. Thus, if plaintiff was dissatisfied with HHS's determination that the receipt of proceeds from the malpractice settlement constituted an overpayment, she had available to her the administrative review process provided by the Medicare Act, which pre-empted jurisdiction by the Court of Claims under the Tucker Act.

Constitutional Law Claim Fails for Lack of 'State Action'

The mother of a severely mentally and physically handicapped patient who voluntarily committed him to the care of the District of Columbia could not after his death bring a claim pursuant to 42 U.S.C. ' 1983 for deprivation without due process of her child's right to proper care as the medical decisions made in his case could not be viewed as “state actions” so as to permit plaintiff to bring a claim of constitutional deprivation. Hanna v. District of Columbia, 2005 U.S. Dist. LEXIS 6320 (D.Md. 4/13/05).

Theorizing that the allegedly inadequate health care provided to her severely developmentally disabled adult son at a private residential treatment facility caused his death and thereby deprived him of a liberty interest protected by his right to substantive due process, plaintiff Wanda Hanna brought a damages action pursuant to 42 U.S.C. ' 1983 and state law against the government of the District of Columbia and Shorehaven Inc., a licensed private agency providing residential and day program care for developmentally disabled individuals. As a matter of law, however, although the District paid the costs for the deceased's care and treatment at a facility operated by Shorehaven, and although the District monitored such care and treatment through judicial review proceedings, the quality or adequacy of the medical care afforded the deceased before his death lacked a sufficient nexus to “state action” to justify the constitutionalization of his entitlement to reasonably adequate medical care from Shorehaven. Consequently, plaintiff's attempt to convert a professional malpractice claim into a claim of constitutional magnitude failed and summary judgment was granted in favor of defendants with respect to the due process claim.

Unprofessional But Unintentional Conduct Not Sanctioned

In this Federal Tort Claims action in which the plaintiffs claimed that the defendants, including a doctor funded through (and thus deemed employed by) the defendant United States, committed medical malpractice leading to the death of Timothy Hansen, plaintiffs moved for but were denied sanctions against the United States for its actions in causing their principal liability expert witness to withdraw as an expert witness. Hansen v. U.S., 2005 U.S. Dist. LEXIS 8524 (N.D. Ohio 5/6/05).

After retaining Dr. Michael Fine, plaintiffs informed the government that they had employed him. Plaintiffs provided a copy of Dr. Fine's curriculum vitae with their disclosure notice. That document showed that Dr. Fine is employed by the VA Pittsburgh Healthcare System, and gives his VA Healthcare office address.

Government counsel did not review Dr. Fine's curriculum vitae until after his report had been received and preparations were being made to take his deposition. More than 3 months after Dr. Fine's curriculum vitae put the government on notice of his employment, government counsel concluded that Dr. Fine's testimony might contravene a provision of the Code of Federal Regulations barring testimony by government employees in cases in which the United States is a party.

The government's counsel did not notify plaintiff's counsel of the possible problem with Dr. Fine's testimony, but instead sought an ethics opinion from government ethics counsel. In turn, instead of responding to the inquiry from government counsel about Dr. Fine's employment status and the effect of the regulation, the ethics counselor e-mailed an ethics opinion about the regulation to Dr. Fine and advised him of the regulation and its significance. In addition, the e-mailed communication notified Dr. Fine that his participation as an expert violated the regulation, that he should “take immediate action to withdraw as an expert witness” and that he should confirm his compliance with that directive by return e-mail. Dr. Fine did withdraw from the case.

The court noted that because the government did not contact plaintiff counsel about this issue and instead went directly to Dr. Fine, plaintiff's counsel was denied the opportunity to consult with Dr. Fine, who might have remained willing to testify had he been given the opportunity to seek a waiver to the prohibition against government employees testifying against the United States. However, because the government's actions were unintentional, the court found that while they were unprofessional, they were not sanctionable.