News & Knowledge

Barbara Buell and Gerard Butler Address the Massachusetts Society for Healthcare Risk Management

Barbara Hayes Buell and Gerard A. Butler, Jr. recently presented at the Annual Fall Conference of the Massachusetts Society for Healthcare Risk Management (MSHRM). The organization is comprised of healthcare risk management, legal, insurance, and claims professionals dedicated to healthcare safety, quality and loss prevention by advancing best practices. More than 100 members were in attendance.

Barbara and Gerard, the only attorneys among those presenting at this day-long conference, addressed “What’s New (and on the Horizon) in Cases, Claims and Court Decisions.” The panel was chaired by Pat Folcarelli RN, MA, PhD, Vice President, Health Care Quality, Silverman Institute for Health Care Quality and Safety at Beth Israel Deaconess Medical Center. Their session covered a number of emerging issues within hospital settings.

Barbara referenced the ongoing responsibilities of hospitals under the Emergency Medical Treatment & Labor Act (EMTALA), which Congress enacted in 1986 to ensure public access to emergency services regardless of one’s ability to pay. She reminded the audience that hospitals participating in Medicare and having a dedicated emergency room are governed by the provisions of the EMTALA. She added that persons coming to the emergency department, or even getting near the ER and asking for care or assessment, must be assessed for an emergency medical condition (EMC). If an emergency medical condition does exist, then the patient must either:

  • receive treatment to stabilize the medical, psychiatric or active labor condition, or
  • be transferred to a facility that can treat the EMC. (Transfers must be within EMTALA requirements.

In support of this, Barbara cited a recent federal court case in Rhode Island titled, Friedrich v. South County Hospital Healthcare System.

In one of the most concerning topics of the day, Gerard addressed the case of Dubuque v. Cumberland Farms, Inc. in which the Massachusetts Appeals Court affirmed a $20M judgment against the convenience-store chain. A customer was struck and killed by a speeding SUV as she entered the Chicopee, Massachusetts location. Gerard noted that this case has relevancy to hospitals since the court offered an expansive view on the law of negligence. The court had permitted evidence of other similar accidents at other Cumberland Farms stores, even though they did not replicate the exact circumstances of the plaintiff's accident.  “Prior Incidents for proving foreseeability within a hospital setting have expanded significantly as a result of Dubuque,“ Gerardsaid, adding, “risk managers and all hospital personnel must now be ever vigilant as never before because of this new development in the law of negligence,“ Gerard said.

Later, Barbara addressed the newly enacted Alzheimer’s statute, Chapter 220 of the Massachusetts Session Laws, which impacts the 130,000 Massachusetts residents currently diagnosed with Alzheimer’s and 330,000 family members and caregivers. One aspect of this new law requires physicians to report the diagnosis to a family member or legal personal representative after receiving the patient’s consent to do so or if, in the physician’s judgment the patient cannot give consent, then telling a family member or legal personal representative. The physician would not have legal liability under these specific circumstances.

Gerard also commented on other recent cases before the Supreme Judicial Court. One cited a hospital’s standard of care in protecting patients at risk to themselves. (Dzung Duy Nguyen v. MIT.) The other established a new duty of care for pharmacies, including hospital pharmacies,  to notify both patients and prescribing physicians when an insurer requires further authorization before it will help pay for medication. (Correa v. Walgreens.)

In the time that remained, both speakers commented on new regulations regarding the prescribing and dispensing of opioid medications and marijuana.