Med Mal News

Brewster Rawls of Rawls McNelis & Mitchell, filed suit on behalf of Kitzinger's widow, alleging VA personnel made a series of missteps. In an interview, Rawls said, “If his heart condition had been recognized and treated in a timely fashion ' there's not much doubt Mr. Kitzinger could have survived.” While not officially conceding that there had been any wrongdoing by any United States employees, the Phoenix U.S. attorney's office apparently put up little fight in the case. U.S. Treasury Department records show the federal government issued an $800,000 payment on May 9.

Company Says Ensuring Health Care Data Privacy Is Not the FTC's Job

In May, Dinsmore & Shohl partner William Sherman II went before Chief Administrative Law Judge D. Michael Chappell to argue that the FTC overreached when it sued his firm's client, medical testing company LabMD, for failing to protect consumer privacy. The suit was filed in August 2013 under Section 5 of the FTC Act after security shortcomings at LabMD allowed leakage of sensitive patient information, including names, Social Security numbers, dates of birth and medical test results. The breach occurred when an employee installed a peer-to-peer file-sharing application on her computer and then inadvertently shared a file containing patient information, instead of music. The company asserts the FTC's suit went too far because no actual harm to the approximate 10,000 patients affected has yet been shown.

“This case is more about what could have happened, what might happen or might have happened, but certainly not about what happened,” Sherman said in opening proceedings. In addition, the company asserts that the FTC should not be involved in a case like its own because the U.S. Department of Health and Human Services (HHS) already regulates privacy and data security in the field of health care through the Health Insurance Portability and Accountability Act of 1996 (HIPPA). The government's position is that it not only has the authority to regulate breaches such as those resulting from the LabMD employee's mistake, but that the company's failures went further than this: that they allowed employees to access private customer information even when their jobs did not require it; that they did not employ secure, individual passwords for each employee; and that they allowed some employees to install software on their work computers. After Judge Chappell issues his opinion, FTC commissioners will then determine if it should be reversed or upheld.

Government Settles Phoenix VA Death Claim

The federal government recently settled, in the amount of $800,000, a suit brought by the survivors of a U.S. Veteran whose death allegedly stemmed from the Phoenix Veterans Administration medical center's (VA) failure to render him the care indicated for his heart condition symptoms. The widow of Leonard Kitzinger allged that her husband, then in his early 60s, first sought care from the VA for his chest pains in February 2011. At that time, Kitzinger's blood pressure was a high 181/85, his electrocardiogram was abnormal and a chest X-ray indicated he was experiencing hardening and narrowing of the arteries. His cholesterol levels were also high, and he was a smoker.

Despite all these red flags, Kitzinger was sent home without medication and without a referral for further evaluation or treatment. Because he was still in pain a week later, Kitzinger returned for evaluation and was diagnosed with reflux issues and given medicine for that and for high cholesterol. No cardiac workup was ordered at that time. Six months later, still suffering from the same symptoms, Kitzinger went back to the VA, where a Physician Assistant referred him to a gastroenterologist and suggested he undergo a stress test to rule out cardiac causes for his distress. The follow-up consultation request she wrote indicated that Kitzinger should be scheduled for the “next available” stress test. Instead, he was given an appointment seven weeks later. In the intervening period, Kitzinger suffered a massive heart attack, resulting in brain death. His wife consented to end life support four days later.

Brewster Rawls of Rawls McNelis & Mitchell, filed suit on behalf of Kitzinger's widow, alleging VA personnel made a series of missteps. In an interview, Rawls said, “If his heart condition had been recognized and treated in a timely fashion ' there's not much doubt Mr. Kitzinger could have survived.” While not officially conceding that there had been any wrongdoing by any United States employees, the Phoenix U.S. attorney's office apparently put up little fight in the case. U.S. Treasury Department records show the federal government issued an $800,000 payment on May 9.

Company Says Ensuring Health Care Data Privacy Is Not the FTC's Job

In May, Dinsmore & Shohl partner William Sherman II went before Chief Administrative Law Judge D. Michael Chappell to argue that the FTC overreached when it sued his firm's client, medical testing company LabMD, for failing to protect consumer privacy. The suit was filed in August 2013 under Section 5 of the FTC Act after security shortcomings at LabMD allowed leakage of sensitive patient information, including names, Social Security numbers, dates of birth and medical test results. The breach occurred when an employee installed a peer-to-peer file-sharing application on her computer and then inadvertently shared a file containing patient information, instead of music. The company asserts the FTC's suit went too far because no actual harm to the approximate 10,000 patients affected has yet been shown.

“This case is more about what could have happened, what might happen or might have happened, but certainly not about what happened,” Sherman said in opening proceedings. In addition, the company asserts that the FTC should not be involved in a case like its own because the U.S. Department of Health and Human Services (HHS) already regulates privacy and data security in the field of health care through the Health Insurance Portability and Accountability Act of 1996 (HIPPA). The government's position is that it not only has the authority to regulate breaches such as those resulting from the LabMD employee's mistake, but that the company's failures went further than this: that they allowed employees to access private customer information even when their jobs did not require it; that they did not employ secure, individual passwords for each employee; and that they allowed some employees to install software on their work computers. After Judge Chappell issues his opinion, FTC commissioners will then determine if it should be reversed or upheld.