On Tuesday Judge Eagles ruled that those challenging the new law were likely to prove that this provision violates the Constitution and therefore temporarily blocked implementation. Other provisions of the Woman’s Right to Know Act became effective this week, including a 24 hour waiting period for abortion procedures except in emergency situations.

Read the complaint filed against the State here, and the Court’s opinion here.

Read more in this report by The Washington Post: http://link.email.washingtonpost.com/r/X109GB/V10G6E/B4VHBV/9L9RZZ/WS337/1G/h.

Space is limited, so reserve your seat now at: https://www1.gotomeeting.com/register/156352369.  After registering, you will receive a confirmation email containing information about joining the Webinar.

We disagree.

The NCMS letter objects to the rule and encourages the Chiropractic Board to abandon the proposal.

The mandate and penalty provisions are set to take effect in 2014. Hudson’s opinion is by no means the final word on the issue, but is significant in that it is at odds with previous decisions by other federal trial judges. The nub of the argument over the individual mandate is whether a person’s decision to not purchase health insurance coverage is within the meaning of “economic activity” as that term is used in Commerce Clause jurisprudence. The opinion concludes that “[n]either the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. [citation omitted] In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.”

The court severed the unconstitutional provisions from the rest of the Act, but declined to stop the government from proceeding with implementation of the mandate and penalty. Both sides acknowledge that the new federal health reform law will not work unless most have health coverage, but the court took the more conservative step of severing the provisions in question because it did not believe the available record supported invalidating the entire PPACA. The court also noted that the initial preparatory steps required to implement the law are fully reversible if the U.S. Supreme Court ultimately finds the provisions unconstitutional.

Also of interest is the expectation that incoming leaders of the 2011 North Carolina General Assembly have indicated a strong interest in reviewing the role of North Carolina state government in the implementation of PPACA.

The US Supreme Court will ultimately decide the constitutionality of PPACA. There are four cases raising constitutional issues, all filed immediately after PPACA was enacted, that are working their way through the federal courts. We will keep our members apprised of developments in this area.

In 2002, the NC Medical Society sued in state court alleging that United’s practices – improper coding, bundling, downcoding, edits, improper use of guidelines, and poor claims resolution – breached contracts with physicians (North Carolina Medical Society v. UnitedHealth Group, Inc., et al.). United removed this case (and similar cases brought by state medical associations and physicians in several other states) to federal court in New York, asserting that the federal courts had jurisdiction over claims covered by ERISA.

At the time these state-based cases were filed, another federal case (In re Managed Care Litigation) was pending in Florida against United based on the Racketeer Influenced and Corrupt Organization Act (RICO). Our state cases were put on hold until the Florida case was resolved in 2007. Thereafter, United convinced the court to dismiss all of the state-based cases. NCMS felt these claims were too important to our membership and decided to appeal that decision. On Tuesday, July 6, 2010, the 11^th Circuit Court of Appeals ruled that our state-based cases were not precluded by the judgment in the RCIO case and remanded them to the federal district court for further proceedings.

“This is a major milestone in the corridors of justice for the NCMS,” EVP, CEO Robert W. Seligson said. “It is anticipated that if the current suits are successful, it will bring major business practice changes by United, which have been a long time in coming.”

Seligson cited diligence on the part of the NCMS, Medical Society of the State of New York, Connecticut State Medical Society and the Tennessee Medical Association as helping to address the unfair business practices.

“It is critical that steps continue to be taken to keep such practices from occurring,” Seligson said. “It will require the support of NCMS members and their colleagues to provide clear examples of these abuses so that we can seek legal relief for practices. We are committed to eliminating unfair business practices by managed care entities.”

The NCMS will keep you apprised of developments in this important case.

In addition to reviewing the requirements of the demonstration project, the group heard presentations by Jessica Scott, MD, JD, and Karen Fasler, JD, on the basics of collaborative law in the healthcare context and the potential for developing a demonstration project using a collaborative law approach. The group consensus was to continue to look into the development of a state demonstration project.  For more information on the requirements of the state demonstration project, click here .

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In 1976, the General Assembly enacted legislation addressing the standard of care in medical malpractice cases. The statute, commonly referred to as the “locality rule,” provides that “the defendant shall not be liable for the payment of damages unless … the care … was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged [negligence].” N.C. Gen Stat § 90-21.12. (Emphasis added).

In 1984, the NC Supreme Court considered whether the enactment of the above statute effectively supplanted all three elements of Hunt. The court held that compliance with the “same or similar community” standard of care does not necessarily exonerate [a doctor] from liability for medical negligence. The doctor must also use his “best judgment” and must exercise “reasonable care and diligence” in the treatment of his patient. Wall v. Stout, 310 N.C. 184 (1984).

On February 3, 2009, the NC Court of Appeals unanimously upheld the judgment of a Guilford County court in Swink v. Weintraub holding a physician liable for damages in a wrongful death case, even though  the trial court admitted opinion testimony from the plaintiff’s medical experts as to whether defendants exercised reasonable care and diligence and used their best judgment (i.e., the last two elements of Hunt) without requiring the experts to testify, as to those opinions, regarding the “same or similar community” standard of care set out in the standard of care statute. The court in this case held that the three elements of a physician’s duty of care enunciated in Hunt were not repealed when the General Assembly enacted the locality rule, and that the locality rule only applied to the first element of Hunt. Swink v. Weintraub slip opinion, p.11.

Dr. Weintraub petitioned the NC Supreme Court to review the Swink decision. The NCMS, with the support and backing of MAG Mutual, assembled a coalition, that included medical specialty societies in NC and the AMA Litigation Center,  to support Dr. Weintraub in his appeal. The coalition sought permission from the court to file a brief supporting the application of the locality rule to all three elements of Hunt.

On January 29, 2010, the NC Supreme Court denied Dr. Weintraub’s petition and thereby eliminated the coalition’s opportunity to file its brief. Although the case was not accepted for review, the NCMS appreciates the early and unequivocal support of MAG Mutual and the AMA Litigation Center in this project. These organizations provided the ability to form a coalition that represents an estimated 65% of all physicians in the country, and 95% of all physicians in NC. The NCMS will consider whether legislative action is needed to address these developments.

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