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NEW YORK’S HIGH COURT LIMITS AWARDS FOR EMOTIONAL DISTRESS IN OBSTETRIC MALPRACTICE CASES.

Last year, the New York State Court of Appeals held that obstetric malpractice resulting in miscarriage or stillbirth (without bodily injury to the expectant mother), may nonetheless properly result in the recovery of monetary damages by her for emotional distress. However, the high court has now refused to extend that theory to encompass emotional injury to the mother when the alleged malpractice results in a live birth. In rejecting the plaintiff’s attempt to extend the law of damages, the Court has held that while the injured child may have a personal injury claim of its own, the mother may not recover for emotional distress if she was not physically injured as a result of the alleged acts of malpractice.

STATE SENATE CONSIDERS BILL TO EXPAND WRONGFUL DEATH DAMAGES

Legislation recently endorsed by the New York State Senate Judiciary Committee would, if passed, permit the award of damages for emotional pain and suffering to parents, children and spouses who have brought wrongful death actions following the death of family members. Under the current law, wrongful death litigants are limited to recovering damages only for economic loss. Opponents of the measure estimate that such legislation could saddle New York City’s hospitals with an additional $280 million in insurance premiums and would likely open a floodgate of wrongful death litigation. If the bill passes, New York would join forty-one other states in permitting such recovery. The Judiciary Committee is also considering a bill that would hold certain health care organizations liable for the medical consequences of their wrongful decisions. Physicians are encouraged to follow STATLAW for all developments on the legislative and judicial front.

OIG HOLDS THAT “TURNKEY “CONTRACT FOR SERVICES TO A PHYSICIAN GROUP MAY BE DEEMED A KICKBACK

In an advisory opinion recently issued by The United States Department of Health and Human Services, Office of the Inspector General, the Government warned that a contract between a physician group and a laboratory services company that provided a “turnkey” pathology laboratory to the physicians in exchange for a flat fee, may be illegal. Under the proposed agreement the laboratory company would have provided office space, equipment, technicians and managerial services to a group comprised of dermatologists, urologists and gastroenterologists. OIG opined that although the contracts at issue seemingly satisfied the applicable safe-harbor provisions, they did not adequately protect the group’s profits from the laboratory corporation and, therefore, may be construed as illegal kick-back arrangements.

PHYSICIAN MARKETING CONFERENCE TO BE HELD AT NYU

Between June 10 and June 12, 2005, a series of graduate study seminars will be held at the NYU Stern School of Business toward providing the effective and appropriate use of modern marketing techniques by health care professionals. The seminar has been approved by the Medical Society of the State of New York for CME credit. For additional information contact Meredith Gifford-Morath at (866) 738-7893.

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