Latest 9 Cases This Week: June Medical Services L.L.C. v. Russo (U.S.), Meadows v. United Services, Inc. (2d Cir.), Darby v. Childvine, Inc. (6th ...

Reflections on the Movement in California to Repeal the State’s Ban on Affirmative Action

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.

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June Medical Services L.L.C. v. Russo

Court: US Supreme Court

Docket: 18-1323

Opinion Date: June 29, 2020

Judge: Stephen G. Breyer

Areas of Law: Civil Rights, Constitutional Law, Health Law

Louisiana’s Act 620 required any doctor who performs abortions to hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced.” The district court provisionally prohibited the Act's enforcement, directing the doctors to seek privileges. Months later, the court declared Act 620 unconstitutional. On remand following the Supreme Court’s 2016 “Whole Woman’s Health” decision, the court entered a permanent injunction, finding that the law offers no significant health benefit; that conditions on admitting privileges common to Louisiana hospitals make it impossible for abortion providers to obtain privileges for reasons unrelated to asserted interests in promoting women’s health and safety; and that this inability places a substantial obstacle in the path of women seeking an abortion. The Fifth Circuit reversed, disagreeing with those factual findings. The Supreme Court reversed. The district court’s factual findings, made after a six-day bench trial, and precedent, particularly Whole Woman’s Health, establish that Act 620 is unconstitutional as an unnecessary health regulation that has the purpose or effect of presenting a substantial obstacle to women seeking abortions. The findings show that enforcing the Act would drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain a safe, legal abortion in Louisiana and imposing substantial obstacles on those who could. The evidence supporting those findings is stronger than in Whole Woman’s Health and showed that opposition to abortion played a role in some hospitals’ decisions to deny the plaintiff-physicians admitting privileges. Delays in obtaining an abortion might increase the risk that a woman will experience complications and may make it impossible for her to choose non-invasive medication abortion. The burdens of increased travel to distant clinics would fall disproportionately on poor women.

Meadows v. United Services, Inc.

Court: US Court of Appeals for the Second Circuit

Docket: 19-3732

Opinion Date: June 26, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Health Law

Plaintiff filed two actions arising from defendants' provision of mental health services to him, alleging violations of his First and Ninth Amendment rights and the Health Insurance Portability and Accountability Act (HIPAA). The district court dismissed the suits. The Second Circuit dismissed plaintiff's appeals because they lack an arguable basis either in law or in fact and denied his motions to proceed in forma pauperis for the appointment of counsel and for a writ of certiorari. In this case, plaintiff failed to plausibly allege that defendants engaged in state action by violating his constitutional rights under 42 U.S.C. 1983. Furthermore, there is no private cause of action, express or implied, under HIPAA.

Darby v. Childvine, Inc.

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-4214

Opinion Date: June 30, 2020

Judge: Readler

Areas of Law: Health Law, Labor & Employment Law

Darby notified her Childvine supervisor that she had been diagnosed with breast cancer and was scheduled for a double mastectomy. Mayhugh expressed doubt about whether Childvine would allow Darby to remain employed when her surgery date fell within her 90-day probationary period. Darby moved the procedure to the day after her probationary period expired. Darby’s request to use her vacation and sick time to recover from the procedure was approved. When Darby returned to work, with a medical release, she learned that Childvine had sent a letter of termination effective on the last day of her probationary period because of an “unpleasant” attitude, dress code violations, and “being unable to work.” Darby filed suit under the Americans with Disabilities Act (ADA), noting that she was never disciplined for behavior issues. In reviewing Darby’s medical records, Childvine learned that Darby was never diagnosed with cancer; she had a family history of cancer and the BRCA1 “pre-cancerous genetic mutation.” The district court stated that the definition of physical impairment does not include a condition that might lead to cancer, and dismissed the case. The Sixth Circuit reversed. Darby plausibly alleged that her impairment substantially limits her normal cell growth as compared to the general population due to both the BRCA1 gene and a medical diagnosis of abnormal epithelial cell growth serious enough to warrant a double mastectomy.

Gallardo v. Mayhew

Court: US Court of Appeals for the Eleventh Circuit

Docket: 17-13693

Opinion Date: June 26, 2020

Judge: Branch

Areas of Law: Constitutional Law, Health Law

Plaintiff sought declaratory and injunctive relief to prevent the Florida Agency for Health Care Administration (FAHCA) from recovering beyond that portion of her settlement specifically designated by the settling parties as compensation for her past medical expenses. The Eleventh Circuit reversed the district court's grant of summary judgment in favor of plaintiff. As a preliminary matter, the court held that the parties' unilateral allocation does not bind FAHCA. On the merits, the court held that federal medicaid law does not preempt FAHCA's practice of seeking reimbursement from portions of a settlement that represent all medical expenses. The court also held that federal law does not preempt Florida's method of allocating the share of a personal injury settlement from which it is entitled to seek reimbursement: its formula of half the settlement after 25 percent attorney's fees, combined with the procedure in which a recipient may challenge that allocation in an administrative hearing by clear and convincing evidence.

Sharpe v. Secretary of Health and Human Services

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1951

Opinion Date: July 1, 2020

Judge: Jimmie V. Reyna

Areas of Law: Drugs & Biotech, Health Law, Personal Injury, Public Benefits

In July 2010, L.M. was born at full-term and developed normally for six months. In February 2011, L.M. received childhood vaccines, including the diphtheria-tetanus-acellular pertussis vaccination. By that evening, L.M. had a fever, was lethargic, had poor muscle tone, and would not eat., Any disturbance caused L.M. to scream. L.M. began to have several seizures a day. At seven years of age, L.M. could crawl and walk with the assistance of a walker. She had a poorly coordinated grasp, suffered cortical visual impairments, and was nonverbal, though she could use a few signs to express ideas such as “yes,” and “no.” Testing revealed that L.M. had a genetic mutation. In a claim under the National Vaccine Injury Compensation Program, L.M. alleged that the vaccinations administered to L.M. in February 2011, significantly aggravated L.M.’s pre-existing condition under two alternative theories. The Special Master denied the petition, finding that L.M.’s genetic mutation was “the most compelling explanation for her predisposition to develop a seizure disorder.” The Federal Circuit affirmed the denial of an “on-table” claim, finding no support for an argument that most encephalopathies do not become acute until after vaccination. The court vacated and remanded the denial of an “off-table” claim, which requires determining whether the child’s receipt of vaccinations significantly aggravated her seizure disorder in the face of an underlying genetic mutation.

Saint Francis Memorial Hospital v. State Department of Public Health

Court: Supreme Court of California

Docket: S249132

Opinion Date: June 29, 2020

Judge: Cuellar

Areas of Law: Government & Administrative Law, Health Law

The Supreme Court held that equitable tolling can lessen the otherwise strict time limit on the availability of writs of administrative mandate under Cal. Gov't Code 11523. The State Department of Public Health (the Department) imposed a fine on Saint Francis Memorial Hospital when it learned that doctors left a surgical sponge in a patient during a surgery. The Department later denied Saint Francis's request for reconsideration. Eleven days after the Department denied reconsideration but forty-one days after being served with the Department's final decision Saint Francis filed a petition for a writ of administrative mandate.The Department demurred on the ground that the petition was untimely under section 11523. The superior court sustained the Department's demurrer, reasoning that Saint Francis's petition was time-barred and that Saint Francis's mistake about the availability of reconsideration was not a sufficient basis to excuse a late filing. The court of appeal affirmed. The Supreme Court vacated the court of appeal's judgment, holding (1) equitable tolling may apply to petitions filed under section 11523; and (2) because the court of appeal didn't address equitable tolling's third element, the case is remanded for further proceedings.

Bowden v. The Medical Center

Court: Supreme Court of Georgia

Dockets: S19G0494, S19G0496

Opinion Date: June 29, 2020

Judge: Harold D. Melton

Areas of Law: Civil Procedure, Class Action, Health Law

The Court of Appeals affirmed a superior court decision to certify a class action lawsuit against The Medical Center, Inc. ("TMC"). Class representatives were uninsured patients who received medical treatment from TMC and who claimed that TMC charged them unreasonable rates for their medical care, which rates TMC then used as a basis for filing hospital liens against any potential tort recovery by the patients. The Court of Appeals also ruled on the causes of action raised by the plaintiffs. The Georgia Supreme Court granted certiorari to answer three questions: (1) whether the Court of Appeals erred in its determination that class certification was proper; (2) whether the Court of Appeals erred in affirming the denial of summary judgment for TMC on common law claims of fraud and negligent misrepresentation; and (3) whether the Court of Appeals erred in reversing the denial of summary judgment to TMC on claims brought under the Georgia RICO Act. The Supreme Court concluded the Court of Appeals erred with regard to the first two questions, but not the third. Therefore, judgment was reversed in part, affirmed in part and remanded for further proceedings.

Planned Parenthood of St. Louis Region v. Department of Social Services, Division of Medical Services

Court: Supreme Court of Missouri

Docket: SC98020

Opinion Date: June 30, 2020

Judge: Paul C. Wilson

Areas of Law: Family Law, Government & Administrative Law, Health Law

The Supreme Court affirmed the judgment of the circuit court declaring section 11.800 of House Bill No. 2011 (HB2011) invalid, holding that there was a direct conflict between the language of Mo. Rev. Stat. 208.153.2 and 208.152.1(6), (12) requiring the MO HealthNet Division of the Missouri Department of Social Services to pay its authorized providers for covered physicians' services and family planning provided to Medicaid-eligible individuals and the language of section 11.800 prohibiting MO HealthNet from doing so. Planned Parenthood of the St. Louis Region and Reproductive Health Services of Planned Parenthood (Planned Parenthood) was an authorized provider of physicians' services and family planning because it had an agreement with MO HealthNet to do so. MO HealthNet informed Planned Parenthood that it could not reimburse Planned Parenthood for those services during the fiscal year 2019 due to section 11.800, which stated that "No funds shall be expended to any abortion facility...." The circuit court concluded that section 11.800 of HB2011 violated Mo. Const. Art. III, 23 because it amended substantive law. The Supreme Court affirmed, holding (1) section 11.800 was invalid because article III, section 23 prohibits using an appropriation bill to amend a substantive statute; and (2) the circuit court properly severed that provision from the remainder of HB2011.

Wolf v. Scarnati

Court: Supreme Court of Pennsylvania

Docket: 104 MM 2020

Opinion Date: July 1, 2020

Judge: Wecht

Areas of Law: Business Law, Constitutional Law, Government & Administrative Law, Health Law

On March 6, 2020, in response to the COVID-19 pandemic, Pennsylvania Governor Tom Wolf issued a Proclamation of Disaster Emergency (“Proclamation”) pursuant to 35 Pa.C.S. 7301(c), a provision of the Emergency Management Services Code. This Proclamation activated many emergency resources. Days later, the Governor issued an order closing businesses that were not considered life-sustaining. Four Pennsylvania businesses and one individual challenged the Governor's Order, alleging that it violated the Emergency Management Services Code and various constitutional provisions. On April 13, 2020, in an exercise of its King’s Bench jurisdiction, the Pennsylvania Supreme Court ruled that the Governor’s order complied with both the statute and Commonwealth Constitution. On June 3, 2020, the Governor renewed the Proclamation for an additional ninety days. June 9, 2020, the Pennsylvania House of Representatives adopted a concurrent resolution to order the Governor to terminate the disaster emergency. The matter reached a loggerhead and went again before the Supreme Court. The Court issued an opinion stating "we find it necessary to make clear what this Court is, and is not, deciding in this case. We express no opinion as to whether the Governor’s response to the COVID-19 pandemic constitutes wise or sound policy. Similarly, we do not opine as to whether the General Assembly, in seeking to limit or terminate the Governor’s exercise of emergency authority, presents a superior approach for advancing the welfare of our Commonwealth’s residents." Instead, the Court decided here a narrow legal question: whether the Pennsylvania Constitution and the Emergency Services Management Code permitted the General Assembly to terminate the Governor’s Proclamation of Disaster Emergency by passing a concurrent resolution, without presenting that resolution to the Governor for his approval or veto. To this, the Supreme Court responded "no": "because the General Assembly intended that H.R. 836 terminate the Governor’s declaration of disaster emergency without the necessity of presenting that resolution to the Governor for his approval or veto, we hold, pursuant to our power under the Declaratory Judgments Act, that H.R. 836 is a legal nullity."