The Louisiana Health Emergency Powers Order – Crossfire
Health Law Talk Presented by Chehardy Sherman Williams
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Welcome to Health Law Talk, presented by Chehardy Sherman Williams health Law. Broken down through expert discussion, real client issues and real life experiences, breaking barriers to understanding complex healthcare issues is our job.
Conrad Meyer (00:24):
And good afternoon, everyone. Welcome to the show again, Conrad Meyer. Here, Chehardy Sherman Williams for another edition of Health Law Talk. And just as the title suggest today, we’re gonna be talking about some very interesting situations happening in Louisiana. And we sort of touched on this a little bit while ago. it’s the public emergency order that deals with immunity provisions to providers in states of public emergencies. And in today we have two very special guests in the studio today. Bobby Malborough, who’s a prominent healthcare attorney, and another another attorney, prominent healthcare attorney on the plaintiff’s side. Kerry Wicker. Gentlemen, how are you?
Kerry Wicker (01:01):
Bobby Marlborough (01:02):
To be Bob. Thank
Conrad Meyer (01:04):
You. Yeah, that’s great. We have two guys who do this consistently and who are involved with this kind of work consistently. And I guess the first question I think listeners ought to know, because this really affects the citizens of Louisiana, and, and, and, and I did a program on this back in the summer, but I think it’s really good to hear from from from the plaintiff’s side how they feel about this, about this. What is this public emergency order? Bobby, if you can take that. What, what’s, what is, what is this deal with, What’s the story here?
Bobby Marlborough (01:34):
Well, the real story is back in March the 11th, 2020, when the governor issued the emergency order, it really affects all malpractice victims in the state of Louisiana from this perspective. When a malpractice act occurred prior to the implementation of the order, the standard of care that a plaintiff had to prove or a victim of malpractice had to prove was the regular standard of care. Number one, we had to prove what the standard of care was, that there was a breach of the standard of care. And that breach caused injury to the plaintiff. Mm-hmm. , subsequent to the implementation of the order under the Public Health Emergency Act. Now we have to prove gross negligence or willful neglect.
Conrad Meyer (02:23):
Bobby Marlborough (02:25):
That’s a burden that’s almost number one, impossible to prove. And number two, we feel that it’s unconstitutional.
Conrad Meyer (02:32):
And so when you, when you talk about that, the, the burden of proof, just because I know some people might not understand that. So to, so it, prior to the, this a public emergency order, when you say that you had to prove a breach of the standard of care. So C can you elaborate what, what do you mean by that? What, what kind of, what is the burden there at that level And then what, what, And, and some people might not understand what gross negligence is. What, in your opinion, what is the difference between the two?
Bobby Marlborough (02:58):
Well, first thing we had to prove before the implementation of the state emerge that a public health emergency act went into effect, we had to prove what the standard of care was. Mm-hmm. , depending on the particular case. For example if we were dealing with the anesthesia case, for example, we had to prove what the standard of care was, depending on what the injury was. For example, we’re talking about the administration of propofol. We had to establish what the proper dosing would be for that particular patient. Then we had to prove if there was an excess amount of doses, we had to prove that there was too much. Right. That was provided. Right Now, we have to prove in that two year period of time that the governor’s mandate was in effect. Mm-hmm. , we have to prove not only that there were the breach of the standard of cab, but that that anesthesiologist or whomever administered the medication was grossly negligent or willfully, willfully neglectful.
That’s one problem. Mm-hmm. under the Medical Malpractice Act, it only says that we have to prove negligence. It doesn’t say we have to prove gross negligence cuz it’s not defined under what we call the L M A Louisiana Medical Malpractice Act. That gets into a whole different discussion that probably in and of itself would take us an hour to explain. Right. So we don’t know, and we’re gonna get into this in a minute, I’m sure and Carrie and I can both discuss it, what we have to prove before panels and what we have to prove to juries. Cuz it’s never been decided at this point yet until, and we’re gonna get it decided soon. We don’t know what we have to prove. Right. I have a split decision that I recently received whether panel found that a physician breached the standard of care, but of course there was no gross negligence and we could discuss that in a minute. So the simple answer is this, we have to prove now during the two year period of time that this was in effect. And that is a
Conrad Meyer (05:11):
Long period. And, and, and for the record, just so our listeners know, so what, what you’re saying is when when, when Covid hit, the governor issued this public emergency order in that tagged this language that, that we’re talking about today about the immunity for providers from civil actions, unless it’s willful or gross negligence
Bobby Marlborough (05:27):
Correct. On 29,771 revised statute 29 7 71, we now have to prove gross negligence or willful neglect
Conrad Meyer (05:35):
For that, for that two year period of time. Cause it’s sunset it I think in March of this year. Correct?
Bobby Marlborough (05:39):
That is correct. It, it was actually two years and I think a week. Right. It was in effect that heart had all sorts of effect on malpractice victims and attorneys handling those on both sides of the aisle. Right. and we could discuss opinions from both sides and I’m sure we will. The problem with that statute mm-hmm. 29 771 is what’s the definition of gross negligence? I, we’ve had cases, and I’m sure Carrie has also, nobody knows what the definition is. There are, I’ve had doctors ask, what is the definition? We don’t know what it is. There are. Right. At least five or six different definitions for gross negligence. And I can tell you nobody wants no physician sitting on a panel wants to find another physician grossly negligent. There are several reasons, and I’ll give you just a handful. Number one, if you find a physician grossly negligent, there’s a good chance that that physician could lose his physician in a hospital. Right. Number two, he could probably lose his coverage cuz his coverage may have, his insurance coverage may have an exclusion. Right. For gross negligence under the State Act, the state act versus a private insurance carrier specifically has an exclusion for a grossly negligent act, which takes it completely out of the realm of coverage. Right. There’s a, the myriad of problems that are brought up by 29 7 71, they clearly were not thought of when this special legislation that we think is,
Conrad Meyer (07:23):
And this predated covid, I mean this goes back what,
Bobby Marlborough (07:26):
This goes back to 2003.
Conrad Meyer (07:27):
Right. I mean, so we’re not talking something that was enacted because of covid.
Bobby Marlborough (07:31):
No. This was, this goes back to 2003 and I, and I think I understand why this was done, did, did this really is is an offshoot of federal legislation when, when the, the, the towers were hit in, in New York mm-hmm. and they wanted protection for first responders who went in and were doing their jobs. And we get that. We understand that. And the bill that was attempted to be introduced in Baton Rouge recently was an offshoot of, of giving people protection who were in the trenches. And we can talk about that in a minute. Sure. But the problem is, is, is that we’re not looking to take away that protection from those people that, or in the trenches in dealing with people who dealt daily with covid people. Mm-hmm. . But that’s the misinformation.
Conrad Meyer (08:30):
And, and I think, and lemme just, lemme just interject it and you’re talking about right now, cuz I don’t, I want our listeners to be aware of a, of a recent legislative house bill. Right. That was introduced in this session,
Bobby Marlborough (08:41):
Senate Bill 3 46 Oh
Conrad Meyer (08:43):
Senate bill was in the Senate. So it was what’s what, what was the bill number?
Bobby Marlborough (08:46):
Senate bill 3 46
Conrad Meyer (08:47):
And, and that bill was going to amend this public emergency order and change the language so that, that, what was it gonna do? Can you, can you elaborate on
Bobby Marlborough (08:57):
That? Yeah. It’s simple. Senate Bill 3 46 was going to amend a bill and
Conrad Meyer (09:03):
Amend the statute,
Bobby Marlborough (09:04):
Amend a statute rather, and still provide protection for those physicians or healthcare providers mm-hmm. first responders and whatnot, who were dealing with patients that were covid related or, or providing medical care or medical assistance for covid related incidents. Mm-hmm. , for example, if, if you’re treating someone in a hospital as a hospitalist that had covid related issues, you would still be provided protection under the statute. But if you’re doing an elective procedure such as rhinoplasty, breath, plasty, giving, providing an ob g yn, giving birth assisting in a birth or a delivery, elected back surgery or something like that, why should that physician be given blanket immunity? It makes no sense. Mm-hmm. , it logically makes no sense. And we always use the argument that a physician, any physician driving to a hospital to go treat a patient for an elective procedure could theoretically make the argument that he’s immune if he causes a wreck. I mean, that argument theoretically could be made by a smart attorney because he’s going to render assistance to someone at a hospital.
Conrad Meyer (10:28):
Bobby Marlborough (10:29):
Conrad Meyer (10:29):
That argument, And so the argument was, was that’s not really what the, the bill was in. Oh, the, the current law was intended to do, Kerry, let me ask you this. Sure. What do you, what are your thoughts? You know, cuz because one thing, and I hear what Bobby’s saying, I get it, and I, and I understand his point, but let me just throw this out at you. Right, Carrie, and because we, I think you and I have had this discussion before, but let’s just say we used a language of the proposed bill, Right. And changing the statute and what is, what’s to stop the hospital, for example, or the provider from arguing that everything is like, we could use covid, everything’s related to covid. In other words, I can’t do, like, to Bobby’s point the rhinoplasty because I don’t have the supplies in the hospital because of Covid. I can’t give birth to the, the, we can’t do a proper C-section, for example. I have to wait because we don’t have enough staff, because we have too many people out because of Covid. and, you know, what are your thoughts on, on this whole thing?
Kerry Wicker (11:22):
Well, first of all Bobby’s correct about the genesis of this legislation actually go, it goes back to 9, 9 11. Right. And it was to protect first responders. And I think the bill the legislation that stemmed there from was well intended mm-hmm. . But unfortunately, as in many legislative efforts, the problem is not the intended consequences. It’s the unintended consequences.
Conrad Meyer (11:45):
I hear that word a lot
Kerry Wicker (11:46):
. And, and, and that, that is, that is the very, very problem with this case. Right. Listen, the bottom line is that there is no rationale, there’s no justification to effectively immunize a physician from liability. Mm-hmm. , who’s delivering a baby who’s, who’s doing a spine surgery when Covid has no relationship whatsoever to that particular patient. The ar the problem. I have clients that sit across my desk mm-hmm. , and I have the unfortunate task of having to say to them, Well, because even though you didn’t have covid, even though none of the treatment, you were rendered in any way directly or indirectly related to Covid mm-hmm. , because you happen to fall in that window because you happen to fall in that time since March of 2020 when the governor declared the declaration of medical emergency mm-hmm. , you have basically drawn a bad card because the doctor is effectively immunized unless we can prove gross negligence. And I, and I wanna follow up on the gross negligence thing, basically, just so your audience will understand Right. What we’re talking about. And he’s correct. There’s nothing certainly in the medical malpractice statute, which defines gross negligence. There’s really nothing in the law that defines gross negligence in this context whatsoever. But the bottom line is what you almost faced with having to prove as a practitioner, representing an injured victim patient mm-hmm. is intent. You almost faced with showing that a doctor or a healthcare provider and did something intentionally to hurt someone.
Conrad Meyer (13:33):
Well then if, if taking that point, if that’s the case, then it’s not covered under the act.
Kerry Wicker (13:38):
Conrad Meyer (13:39):
Right. So that’s another unintended consequence.
Kerry Wicker (13:41):
Exactly. And, and, and listen, I have represented injured, injured patients for 40 years. I have never, ever believed in my entire career that any healthcare provider did anything to intentionally hurt someone. I would never make that allegation. There have been cases reported nationally where that was the case. Right. But those are very, very, very rare. So,
Conrad Meyer (14:06):
So I guess, let me ask you this and both of y’all, to both of you and, and, and, and, and lemme I don’t wanna finish your point, Carrie, but could general negligence also be considered gross negligence? Could, could, could that argument be made or No? I see Bobby shaking his head no. So it has so definitely a higher burden, right? Yes. Higher burden.
Kerry Wicker (14:25):
Yes. And, and, and let me say this to you too. The Louisiana Health Emergency Powers Act was modeled after the State Emergency Health Powers Act. Right. Which is passed after nine 11. And that act limits itself, limits its applicability to cases where the person who is being immunized effectively only relates to cases where they’re treating people with, with, with that malady. In this case it would be covid. Right. So, so even though our statute is allegedly modeled after the modeled after the Model State Act,
Conrad Meyer (15:01):
It goes further than
Kerry Wicker (15:02):
That. Much, much further than that. And, and I, I’m gonna tell you there, there is, there are a lot of people that really do not understand this. And I happen to be in that number. I don’t understand this, I don’t believe, and I, and I, and I don’t mind saying this, Uhhuh, I don’t believe that anybody with a modicum, a modicum of intellectual honesty could think that this, this bill read and as broadly as it has been read, has any basis whatsoever
Conrad Meyer (15:31):
To both of you. Have you had clients during this public emergency act that you’ve had to tell, I’m sorry, I’m sorry for your loss. I’m sorry for what happened to you, but I can’t take your case because of the, because of the the statute. Have both of y’all had
Kerry Wicker (15:45):
Bobby Marlborough (15:46):
I’ve had too many. and, and for both of us, well, I can only speak for myself, Right. But Carrie and I talk all the time. We do. there’s a small number of people that want to handle medical malpractice to begin with. It. It’s a very difficult practice and it’s a very expensive practice. but I have increased the number of people that I have told that to, probably two or three full since March 11th of 2020. Mm-hmm. . but to add one thing that Carrie said Sure. It, it so eloquently pointed out, if we have to prove willful neglect mm-hmm. , that’s a criminal act. That’s how willful neglect is defined.
Conrad Meyer (16:37):
And so, again, another unintended, So now we’re looking at potential criminal charges of what you’re saying is true. And the DA would get involved, I guess. And, and if they decided to ever do that,
Bobby Marlborough (16:47):
And, and I I have never, I have heard that there’s one case out of Texas, Dr. To death.
Conrad Meyer (16:52):
Oh yeah. Everybody knows, everybody knows that case. Okay.
Bobby Marlborough (16:56):
That’s willful neglect. Right. I’ve never had a case of willful
Kerry Wicker (17:00):
Neglect, nor have
Bobby Marlborough (17:00):
Conrad Meyer (17:01):
And it took, let me tell you, that’s a very, if you haven’t listened to that, I’ve mentioned that to, I mean, I teach health law at Loyola and at uno, and I mentioned to my students all the time, that’s some, a podcast that’s that, that they’re willing and even a TV show, the first series on Dr. Death. Very interesting.
Bobby Marlborough (17:16):
But that’s willful neglect. It is. But that’s in the statute. The statute. Right. 29 7 71. Mm-hmm. says that we have to prove either gross negligence of willful neglect. Now, I guess in a minute we’re gonna get into why we think this statute is unconstitutional under Article three, Section 12, a three and seven. I think it’s clearly unconstitutional. I think the legislature clearly overstepped its bounds. And, and I’m gonna attribute this statute to just the lobbying effort that goes on in Baton Rouge. And I’m gonna tell you, Conrad, I’ve been knowing you, you and I have had cases together. We have we’ve had some really big cases together mm-hmm. . And, and I’d like to consider myself an honest man, and I know you are and you’re a good lawyer. But what I see going on in Baton Rouge to me, I spent two tr two, I made two trips to Baton Rouge and I don’t care to ever go up there again cuz I’ve heard some things that were just frankly dishonest.
Conrad Meyer (18:21):
Well tell, let’s talk about that. Let’s, let’s kind of segue into that. Now, I know you went in front of the committee on this bill, on this Senate bill. And then, so tell me, tell me a little bit about that. Tell Carrie and I what
Bobby Marlborough (18:30):
Happened. Well, I’m not gonna use any names. Okay.
Conrad Meyer (18:34):
Bobby Marlborough (18:34):
Fair enough. What, what happens at, if, if your listeners had never been to Baton Rouge,
Conrad Meyer (18:40):
Well tell, you know what they’ve given them the process. What happens? How does this whole genesis start to, to change the
Bobby Marlborough (18:44):
Statute? Just how this happens. Senate Bill 3 46 was brought up before committee, the Juda committee. And there are seven senators that sit on that committee.
Conrad Meyer (18:54):
Bobby Marlborough (18:55):
And this bill is introduced by one of the senators in that committee. Okay. And the bill is discussed and there are people for it and against it. And those people get the fill out a card and they get to present why they’re for it and why they’re against it. To the committee. To the committee. So we had lawyers and then we had victims of malpractice present their case to the committee. so a couple of notable people mm-hmm. one case that’s presently before the Supreme Court, Kathleen Welch was up there. that’s a current case before the Supreme Court. my client Naomi Davis mm-hmm. , which is a case that I just filed in St. Mary Parish this week that’s gonna test the constitutionality of 29,771. But the process is, these people testify and then those opponents of the bill who were lawyers and then some doctors got to testify mm-hmm. . And that’s where I almost lost it. very passionate about what I do as is Carrie, I think my temper’s a little bit greater than here. . I
Kerry Wicker (20:15):
Think on a, on a given day, maybe, maybe
Bobby Marlborough (20:17):
Not, I had to get up and walk out of the room because the reason being is that most of these doctors, physicians who testified were hospitalists we’re not talk this, this bill that we’re introducing Senate Bill 3 46 doesn’t talk about, We’re not looking to take their immunity away. Those are the people that would still be protected under the bill. Those are the people that were dealing with Covid on a daily basis. Yet they sat there in front of this committee, in front of a room full of people and literally made the statement that what you promised us, the protection that you promised us now you want to take away. I’m sorry that was a lie. That was an untruth. And it’s just so wrong.
Conrad Meyer (21:14):
Right. And look, lemme just say this, we’re not here to, for or against, we’re just fact gathering it underst this, the, the show is not promoting or or opposing the bill. We’re just gathering information. But I understand and you’re very passionate, Bobby, I see that. I am. And so when you heard that, I’m sure it moved you and, and, and I could see why you had to walk out. It
Bobby Marlborough (21:33):
Moved me out of the room. Right. . Because I just, I couldn’t, it was either that or I was gonna shout out.
Conrad Meyer (21:40):
Well, I’m glad you didn’t do that .
Bobby Marlborough (21:42):
So I just got up and moved out of the room because that, that was an untruth. Right. If you’re gonna, cuz you, you theoretically, you take an oath if you’re gonna testify before this committee mm-hmm. . So in my mind, you need to be speaking the
Conrad Meyer (21:58):
Truth. So, so when you go in front of the committee, you have the, the fours and the againsts, and then they hear the testimony and then they vote. Correct. And then, and, and if it, if it passes, it goes out of the committee onto the Senate floor. Is that
Bobby Marlborough (22:10):
Right? That is correct. Then it goes to the house floor.
Conrad Meyer (22:13):
If the Senate, if the full floor approves it goes to the house and then same process, and then if they approve, it goes to the governor. Correct? That’s correct. Okay. And so where, where right now, does the Senate bill sit? Is it just stay? It just, was it ever voted on? Not voted on.
Bobby Marlborough (22:28):
We pulled it.
Conrad Meyer (22:28):
You pulled it.
Bobby Marlborough (22:29):
The bill got pulled.
Conrad Meyer (22:31):
Bobby Marlborough (22:31):
The bill got pulled because we weren’t sure we had the four votes that we needed and the bill got pulled because we think we stand a better chance of getting the bill declared unconstitutional. It’s the problem if that bill is declared unconstitutional. Let me back up a step. Before we left the committee hearing that day mm-hmm.
Conrad Meyer (22:58):
Bobby Marlborough (22:58):
The chairman of the committee, suggested that we get together with the other side, the healthcare side and try to make some form
Conrad Meyer (23:10):
A compromise of compromise. Okay.
Bobby Marlborough (23:14):
The other side refused to meet with us because no one wants this bill declared unconstitutional. And the reasoning should be simple to see if it’s declared unconstitutional, know then the immunity that they have.
Conrad Meyer (23:31):
Bobby Marlborough (23:32):
Conrad Meyer (23:33):
Gone. And I guess that’s the next question. So, I mean, and to both of you when we talk about the constitutionality of the, of the, of the actual statute, what’s the argument on the unconstitutionality portion? I mean, I, I don’t want to get too much into old con law class, but you mentioned Bobby, you, you actually cited a section. I mean, is it, is it just taking away Louisiana citizen’s rights without due process? what, what’s, what’s the argument to be made if you can say that? I don’t want to, you know, you know, leak out any kind of legal secrets. No, I, but just the
Bobby Marlborough (24:10):
Thought. There’s no secret. Any, anyone who can read the constitution, anyone who could read Article three Section 12 a three mm-hmm. and seven says that the legislature cannot write a bill or any legislation that specifically grants immunity to a special group of individuals, period. Under any circumstances whatsoever.
Conrad Meyer (24:45):
So that’s a very interesting argument and I guess it’s gonna go all the way up. and that’s, that’s the intent. I’m assuming Carrie, have you, when, when I know you’ve got experience in telling clients No. Have have you had, when you’ve had panels this year that have gone to, or you’ve had claims that I’ve gone to panel during this public emergency, have there been any kind of issues at the panel level dealing with the panelists questioning Yeah. The standard that of the review?
Kerry Wicker (25:15):
Yes. Many for, for the benefit of your, of your listing audience. Yeah. Lets, yeah. For the benefit of your listing audience they need to know that, that in under the Louisiana Medical Malpractice Act, there are a number of protections that healthcare providers have, not the least of which is a cap. Right. $500,000 cap plus medical
Conrad Meyer (25:35):
Expenses, the damage cap,
Kerry Wicker (25:36):
And a medical review panel. So we are required as plaintiffs to present our case to a medical review panel as a prerequisite to going to suit in court. Now I don’t have to tell you, and I don’t think it’s gonna be a surprise to many, that we lose about 90 to 95% of those panels, regardless of the merits of the case. But yes, in, in direct answer to you question, Conrad, what what we are now faced with is there is a panel chair and then there are three physicians or three healthcare providers on the panel. And the panel chair is faced with the issue of whether to instruct the panel that the standard is gross negligence. And there has been a bunch of litigation about that back and forth and in the 24th and the Fifth Circuit. and, and it’s unsettled. I think there have, there has been an opinion about a fifth Circuit, and I don’t know that it was very telling to any of us.
I think it, they basically punted, for lack of a better term on that issue. But, but yes, there’s a lot of, there is a lot of dispute at the panel level about whether in light of the Emergency Powers Act mm-hmm. , the panel chair is required under the law to tell the panelists that no longer is it, did the doctor breach the standard of care? Did the doctor commit gross negligence? And of course, listen, we already losing plaintiffs are already losing 90 to 95% of the panels under the ordinary standard of negligence. I need not tell you what’s gonna happen to that number if the doctors to have to decide whether the physician or healthcare provider was grossly negligent. And, and Bobby’s absolutely correct, my God, The, the, the professional ramifications of a healthcare provider to be found willfully or grossly negligent. I can’t imagine what they might
Conrad Meyer (27:32):
Be. Well, let me ask both of you this question. If I went to a pool of physicians right now and told them about this immunity statute during Covid, how many of them would you think raised their hand and say, I know about that
Kerry Wicker (27:44):
? I, that’s a
Conrad Meyer (27:46):
Good question. I mean, I mean, and that’s what I’m asking you because I mean, I know as lawyers you both know this inside and out, we all do. But, but if I had to go to an orthopedic surgeon or a cardiac, any, anyone really, any, any physician anywhere, whether it’s a hospitalist, Bobby or, or Kerry, a specialist. And I would say, Hey, did you know, did you guys know? Or you, you doctors know that for the last two years you could have done anything you want and you would be basically immune. Immune. Did y’all know that? How many do you think would actually acknowledge that?
Kerry Wicker (28:18):
I think not a great number. I’ll tell you this. Probably
Bobby Marlborough (28:21):
Conrad Meyer (28:22):
A third. You think a third? I
Bobby Marlborough (28:24):
Kerry Wicker (28:24):
A third. I’ll tell you this, a hundred percent of those physicians that are actively in litigation would
Conrad Meyer (28:30):
Know about it. Oh, well that’s different. I would agree with that. Hopefully their attorneys would tell them Yes, that’s right. Right.
Kerry Wicker (28:35):
But, but I’m sure there’s a fair amount of Bobby’s guess is probably right. It’s about a third. It’s less than 50% because it’s just not on their
Conrad Meyer (28:43):
Radar. So, but lemme ask you this. So, so I mean, I get, I understand about victim’s rights and I can under, and I know how passionate both of you are for your clients. My question is, is do you think the providers themselves somehow think like they’re, they’re getting away with something over these last two years? In other words, do you think they’re doctors that are going around saying, Oh man, I got a free pass. I can kinda lower my standards or I can, you know, I don’t have to worry as much. I mean, do you think that that is going on? No, no, no. I do. Okay.
Bobby Marlborough (29:17):
No, and, and I think Carrie and I both think the same way. I come from a family of healthcare providers. I know you might find that kind of weird.
Conrad Meyer (29:26):
No, no. I’m married to one .
Bobby Marlborough (29:28):
I have I know you are. I I have a son that’s a doctor.
Conrad Meyer (29:32):
Bobby Marlborough (29:33):
I have a son that’s a Navy nurse who’s gonna be a cna. I have a, a daughter who’s a cardiac exercise physiologist. I have another daughter who does echocardiograms and vascular sonography. We
Conrad Meyer (29:49):
Have a lot of lineage in the healthcare system, that’s for sure.
Bobby Marlborough (29:51):
I have a mother-in-law who’s a nurse. my wife went to took our prerequisites in nursing. My sister-in-law, the nurse practitioner.
Conrad Meyer (30:01):
I had no idea.
Bobby Marlborough (30:02):
Yeah. so why am I doing plaintiff medical malpractice work? I don’t, A lot of people might think that’s a conflict. And I look at it the other way. I have a great deal of respect for the medical profession. I like to tell people I studied law for four years, but I’ve been studying medicine for the last 42 . I have more medical books than I have law books. I don’t believe in my heart of hearts mm-hmm. that there’s such a thing as a bad physician. I, I just don’t, I think everybody makes mistakes. Yes. I make a mistake, but it doesn’t cost someone their life. It doesn’t cost them heartache for the rest of their life. If I make a mistake, I expect to pay for it. Why doesn’t it work the other way around? That’s the question I ask myself. It should. Okay. Uhhuh
Conrad Meyer (31:06):
Bobby Marlborough (31:07):
But I’ve been doing this for a long time, Conrad 42 years. I got two years outta carry. Okay. You make a mistake, just own up to it. Don’t we punish lawyers when they make a mistake? I get a bar journal every two months and I go to the back of the journal and
Conrad Meyer (31:25):
I You read the note of Ben a
Bobby Marlborough (31:27):
All the time. Mm-hmm. Okay. But it doesn’t seem to be that way. Carrie’s right on his numbers. We lose medical review panels. The exact number is negative. Well, well, 4.5% of the time.
Conrad Meyer (31:42):
And let me just tell you this, and, and, and, and I know you know this for sure, but if, if a doctor loses a med mal case that doctor’s reported not only to the N P db Right. But also to the state board. And that goes on, that’s on the record forever. So I I I get what you’re saying, but I do believe, but that’s only if they lose or they pay a judgment. So you know, I think there is and, and I know the state board for example. And
Bobby Marlborough (32:06):
What are the ramifications of that, Conrad?
Conrad Meyer (32:09):
Well, and that’s a good question. I think, I think the board and, and, and, and I might actually reach out to their doi their director of investigations, Dr. Creswell, who I know very well. I know him too. And so see if he would comment on this. But, but, but basically the board I think is obligated to investigate when there’s some, I know they’re obligated to investigate on a complaint, but if they gather a a decision on a judgment, I don’t know if they’re obligated to investigate that. That’s, I’m not, I’m not a hundred percent sure on that.
Bobby Marlborough (32:38):
What are the ramifications though?
Conrad Meyer (32:40):
I mean, they, they, they, if there’s a, like for example, if there’s a pattern, I mean, I, and I’ll defer to Dr. Questro on this, but if there’s a pattern, I know that they have they have initially investigated and filed complaints against doctors on, on incompetency in other things. I know they’ve done that. I’ve seen that. I’ve been on the other end of that.
Kerry Wicker (33:00):
Yeah. Well, I, my Now
Conrad Meyer (33:02):
How often is that? I don’t know. I can’t speak to that.
Kerry Wicker (33:05):
One of my big two things, Number one, I have, I don’t have any healthcare providers in my family, but I have very, very many health providers, Right. Healthcare providers who are dear friends of mine. And, and, and I’m, I like Bobby. I have the ultimate respect for the healthcare providers. I think the overwhelming majority of them are good, caring, decent, compassionate people. the problem I’ve got is, listen, I might be the best driver on the planet and if I just have, and I never have an accident, but if I have one bad day when I blow a stop sign and killed somebody, I’m responsible. And the fact that I happen to be a good driver all the other time really doesn’t matter. And I think that’s analogous to this. As Bobby said, if I make a mistake as a lawyer, I’m going to be held accountable. Right. I’ll be held accountable financially, and I’ll be held accountable. Very much could be held accountable by the Bar Association. Correct. So my, my concern about the medical profession, and I’ve spoken to doctors about this mm-hmm. , is I don’t believe they have done a very good job of policing their own. And by that, what I mean is we, as plaintiff practitioners, we see the same names over and over and
Conrad Meyer (34:18):
Over. You mean as defendants?
Kerry Wicker (34:20):
Yes. Same doctors over and over and over. And now some of those cases, there’s not demonstrable negligence, but when you see the bad outcomes systemically from the same healthcare providers, time after time, after time, And then you see that the Louisiana State Board of Medical Examiners and other investigating agencies have not done anything about that. And Conrad, you and I have discussed this. We have, and we have discussed the, the repeat offenders that we all know about. And, and they’re well known in the malpractice community on the plaintiff and the defense side. And they’re still cutting, they’re still operating on people. And, and I, I fought the medical community for that. Mm-hmm. . And, and you know, when a doctor, when I present a case to a medical review panel, and I know it’s a good case, I screen my cases very, very hard. Mm-hmm. , I don’t take baloney because if I did, I’d go broke. It would be a bad business decision. But when I present a good case, a solid meritorious case to a medical review panel, and that panel just ignores the facts, ignores the medicine and just says, No breach, they, they’re not helping the medical profession. They’re enabling the bad doctors. And I fought them for that.
Conrad Meyer (35:40):
Bobby Marlborough (35:40):
not only that, they’re vitally in their oath for sure. They are. And it, that means nothing to a lot of people. But they take an oath. I mean, we’re burdened with this medical review panel stuff, just like we’re burdened with the cap of $500,000 that in today’s dollars is worth $87,000. And we could talk about that another
Conrad Meyer (36:04):
Day. We could, we could, we could spend hours on that. You know, it was it 1973 when it was
Bobby Marlborough (36:09):
19 75, 5.
Conrad Meyer (36:10):
There we go. I was close.
Bobby Marlborough (36:11):
Yeah. $500,000 is now worth $87,000.
Conrad Meyer (36:15):
Now I’ve, I’ve I’ve heard about
Bobby Marlborough (36:17):
That. We could talk about that until the cows come home. But
Conrad Meyer (36:21):
Well, and, and lemme just say this and, and, and I know to Carrie’s point about policing their own. Yes. I mean I do a tremendous amount of peer review work for hospital facilities. And I know there’s a lot of a, there’s a, there’s a veil over that. And the reason in terms of confidentiality at the state level, confidentiality at the federal immunity at the federal level, confidentiality at the state level for peer review. And, and that was to allow transparency, you know, to go back and forth between the physician and provider community to please their own. I, I, I’ll be candid with you, It’s, it’s a, it’s a very difficult process. And I think it, it, it, it’s, it’s facility dependent. In other words, who’s the driver at the facility that’s pushing the peer review process? You follow me?
Cause I, I used to, I was a hearing officer. I’ve been a hearing officer from about nine or 10, nine or 10 different peer review investigations at various hospitals on the Gulf South. And I could tell you, and that’s over the last 10 years, it is very rare that you even get to that point. You follow me? I mean, I mean, if you ask a hospital how many peer review hearings they’ve had, I could tell you, they probably would look in their their hand and say, I could count on one hand in the last 10, 15 years, how many have you had?
Bobby Marlborough (37:36):
And here’s the thing about peer reviews, as you know, and a lot of people may not know this. We’re not entitled as plaintiff attorneys to the results of the peer review.
Conrad Meyer (37:45):
Bobby Marlborough (37:46):
But we are entitled to the evidence that’s submitted for the peer review,
Conrad Meyer (37:50):
For the credentialing application. For
Bobby Marlborough (37:51):
The credentialing application. And if there’s a hearing for a peer review, the lawyers are entitled to this evidence that is submitted for the peer review. Not many people know that. Well, there are two cases out there that says that we can get,
Conrad Meyer (38:04):
I like to read those cases cuz I’m not aware of
Bobby Marlborough (38:06):
That. I can give you those two cases. I like that. Well,
Conrad Meyer (38:09):
The facts learn something new
Bobby Marlborough (38:10):
Today. Now many people are aware of that. Well,
Conrad Meyer (38:12):
But the facts, the facts on the credentialing application that are submitted to the credentialing committee for the privileges. Yes. I think that, that, that’s un that’s settled jurisprudence
Bobby Marlborough (38:22):
Maybe. I think we’re talking about two different things. Yes. If you have a peer review hearing Yes. On an alleged malpractice incident mm-hmm. at a
Conrad Meyer (38:29):
Bobby Marlborough (38:30):
And the physician submits and other hospital personnel submit material for that peer review hearing. Mm-hmm. , the plaintiff’s attorney is entitled to the evidence that is submitted for the peer review. We’re not entitled to result of the peer review
Conrad Meyer (38:48):
For the discussions Right.
Bobby Marlborough (38:49):
For the session, but we’re entitled to the evidence that is submitted for that
Conrad Meyer (38:53):
Period. And that’s, And what if that evidence though, constitutes peer review material? I guess you’d have to go through that, but I get like medical records or some time sheets or log sheets
Bobby Marlborough (39:01):
Conrad Meyer (39:02):
Position in their and the position and the
Bobby Marlborough (39:04):
Conrad Meyer (39:05):
Wanna see that
Bobby Marlborough (39:05):
Case of the
Conrad Meyer (39:06):
Position. Either way. My point, I wanna see that case. Sure. Either way. The point, the point I’m trying to tell both of you is that I know that peer review is, is the process. I mean, I know they have m m conferences, they have peer review and hospitals. but I gotta tell you it is, I don’t know if it’s used as as much and you know, does it get to the hearing standpoint? In other words, how, how far do the hospitals go? And I think it’s, it’s, it’s gonna be hospital specific. Like who’s, who’s the driver of that in terms of the, the medical executive committee. But we’re getting into a whole different area that we are.
Bobby Marlborough (39:37):
None of that helps us.
Conrad Meyer (39:39):
No. So, so let’s come back down. So, so, so, so Bobby, I know you talked about the constitutionality of the of the statute and I know you’re, you’re challenging that right now. Can you tell us a little bit, tell our listeners a little bit about the suit you filed and where you expected to go? Let
Bobby Marlborough (39:51):
Me, let, let me, if you don’t mind, I’ll get into a little bit of the specifics about the case. Sure. I, I have a client that her husband is a 60 year old male who had your common every day seven level cervical fusion. Both anterior and posterior.
Conrad Meyer (40:08):
Bobby Marlborough (40:09):
Seven levels. Fu Yeah.
Conrad Meyer (40:11):
Bobby Marlborough (40:12):
I say that tongue at cheek because
Conrad Meyer (40:14):
No one has seven
Kerry Wicker (40:15):
Levels. No one has seven levels.
Conrad Meyer (40:17):
no one has seven levels. I
Kerry Wicker (40:18):
Don’t know who the doctor is, but I can guess. But anyway, go ahead .
Bobby Marlborough (40:24):
He it was a two day surgery.
Conrad Meyer (40:26):
Bobby Marlborough (40:27):
And obviously when you undergo such a surgery, you get a lot of fluids, like 10,000 milliliters.
Conrad Meyer (40:35):
Bobby Marlborough (40:37):
In order to get a lot of fluids, you have to pull those fluids off before you’re discharged from the hospital. And that takes a little while. You can’t do that in 24 hours. Mm-hmm. , he was discharged from the hospital prematurely. He was supposed to spend a week in the hospital and then a month in rehab. He didn’t, he spent 24 hours in a hospital. He was discharged from the hospital and four days later he showed up in the emergency room because the doctor who performed a surgery, and I’m gonna leave names out, even though it’s a matter of public record, he went to see the orthopedic surgeon who did this seven leveler confusion Uhhuh. And he had complaints of hallucinations in delusions. for your listening audience, that means that he’s got a fluid overload and he’s probably got some brains welling going on. Okay. Because there’s too much fluid that’s not in the record. Of course, the day after he sees his orthopedic surgeon, he complains about being delusional and having hallucinations. And the orthopedic surgeon says, Go see your pcp, which he does. PCP says, you need to go to the emergency room. He goes to the emergency room, he sees an np cause the emergency room physician doesn’t have time to see him or doesn’t want to see him. And the emergency room physician gives him what’s called an isotonic solution of normal saline. That’s 0.9% sodium.
That’s clearly the wrong medicine.
Conrad Meyer (42:14):
Bobby Marlborough (42:15):
He needs hypertonic saline because he’s hyponatremia.
Conrad Meyer (42:21):
Bobby Marlborough (42:23):
His sodium level is 118 millis per liter. Your normal saline level is 1 36 to 1 45. He is critically hyponatremic. This man belongs in the hospital on 3% saline, 100 milliliters at a time, slowly IV solution off blood tested off and on belongs in a hospital.
Conrad Meyer (42:53):
What, what happened, what happened to him?
Bobby Marlborough (42:55):
No doubt about it. 36 hours later he’s dead. They give him a bolus, they set him home, They don’t check his blood. 36 hours later he’s dead. It goes to panel. Mm-hmm.
Conrad Meyer (43:08):
Bobby Marlborough (43:10):
The panel finds that the emergency room position is negligent under the general standard of care.
Conrad Meyer (43:19):
Bobby Marlborough (43:20):
And that negligence caused his depth. That’s what they said. So
Conrad Meyer (43:24):
They found causation,
Bobby Marlborough (43:25):
Uhhuh , Guess what they said when it came to gross negligence? He’s not grossly negligent because he rendered some form of treatment. Albeit minimal. No, it’s not minimal treatment, it’s the wrong treatment. Right. It’s not, it’s not even minimal. It’s he kill it. Because what he did when he gave him the 0.9% normal saline mm-hmm. , he gave him, he increased the key increase to cellular. He gave him extra cellular fluid. He caused his sodium level to go from one 18 to one 11. In other words, he made him worse. He killed him. When the EMS got to his house 36 hours later when he stopped breathing his tongue, his throat was so swollen, they couldn’t even intubate him. They couldn’t get a tube down his throat. So the panel says he’s negligent that negligence killed him, causes death, is what they said. But no, that’s not gross negligence.
Conrad Meyer (44:32):
So now you’re in, you filed a post panel suit?
Bobby Marlborough (44:35):
I filed a post panel suit in the post panel suit. I alleged that the statute was unconstitutional. That suit is pending in St. Mary Parish. It was, I mailed it in three days ago. It just got filed today.
Conrad Meyer (44:49):
Oh wow. Oh. So, okay.
Bobby Marlborough (44:52):
Conrad Meyer (44:53):
The ball is rolling. The timer’s on. Okay. So what do you anticipate
Bobby Marlborough (44:57):
The bill, the Senate bill? Yeah. 3 46 got pulled because we think now that we have a better chance of having that statute declared unconstitutional. This is apparently what they wanted. Remember, instead of compromising, they apparently want the statute declared un unconstitutional. So none of the physicians now will have immunity if this statute’s declared unconstitutional. Mm-hmm. .
Conrad Meyer (45:26):
Well, I guess we’re gonna have to find out and, and you know, we we’re gonna have to keep us a keep me and, and I, and I’ll keep the listeners aware of the status of the posture of this case because we’re gonna follow that as we move through this process. On this particular issue. I think I’m sorry for your client, Bobby. I’m sorry that happened, but I’m very interested from a legal standpoint as to where this is gonna go. and in terms of how, Now this is St. Mary’s. Is that, what is that fir What circuit is that? Third circuit. Oh, I’ll see why. Okay. Interesting circuit. So yes. we’ll see where, we’ll see where that goes and we’ll keep an eye on that. And, and, and Kerry, I guess to to to, now, I know you’ve come across now Bobby has a case. Now, did you come across any cases that you thought about possibly challenging in terms of the, the same, ticking the same road? I mean, are we, are we do
Bobby Marlborough (46:14):
Oh, you thought, let me add one other thing for you. Chuck Kerry. Yes. The interesting thing is with this my case, Yes. The treatment started before the governor issued, his state of emergency started on February the fourth.
Conrad Meyer (46:26):
So we, so we have, we have treatment that spans both,
Bobby Marlborough (46:29):
But the surgery actually was
Conrad Meyer (46:33):
Post, post went to the order March 11th. Oh wow. Okay.
Bobby Marlborough (46:36):
And the death, of course, what’s
Conrad Meyer (46:38):
Post, Well that’s really gonna present an interesting issue because now you have this overlapping care
Bobby Marlborough (46:43):
And of course I’m alleging that the surgery was absolutely unnecessary, but Right. They’re gonna say it was necessary cuz he went into the physician Sure. With tingling in his hands.
Conrad Meyer (46:54):
We’re gonna have to follow that and see where that goes. Keep a surprise of that or keep me apprised and I’ll, and I’ll keep our listeners apprised as
Bobby Marlborough (47:00):
Well. I think I might keep the whole state of Louisiana.
Conrad Meyer (47:02):
I think you will no doubt. Carrie, do you, do you have any situations where you thought this might be a good case that you can share? And if not, I understand, I don’t wanna do any privacy issues, but, but what, did you come across some issues where you thought, Hmm, this might be something that I want to consider to challenge the constitutionality of the statute?
Kerry Wicker (47:24):
Well, Conrad, there are a couple of, couple of things that go into that question. Number one is the Lajune case, which I think Bobby referenced early on. Are you
Conrad Meyer (47:33):
The Katrina case? Yes.
Kerry Wicker (47:34):
The Katrina case was a case where it was dismissed on motion practice because the plaintiff had lost the panel. And, and, and the plaintiff was unable to procure a, an expert who was, excuse me, prepared to say gross negligence. Right. So the fifth Circuit held that, that it was
Conrad Meyer (47:53):
Appropriate in La June, just for our listeners, was a case that was brought post Katrina, that was in that dealt with a care of a patient who ultimately found out they had to retain sponge. Yes. And so clearly all of us would’ve say that’s gross negligence. And so, and the plaintiff went and filed suit and they, they cited the immunity statute and it got kicked out because the plaintiff procedurally, like you said, had no expert to, to verify that.
Kerry Wicker (48:15):
Correct. But, but let me follow up on something Bobby said. Yes. Which I think is very, very important. Uhhuh for your listening audience to know Bobby’s Right. There are fewer and fewer of us. I, I, that is plaintiff medical malpractice lawyers Right. In the
Conrad Meyer (48:29):
Business. We all know each other
Kerry Wicker (48:30):
On, everybody knows each other. It’s a very small community, plaintiff and defense. Mm-hmm. , we deal with each other every day. And, and the reason our numbers are dwindling is because the cost. Mm-hmm. , the difficulty, the time that re is required to expand on a case to do justice to the case to be successful is, is incredible. And that was before the Emergency Powers act, the gross negligence thing. So, so what what the bottom line is, is that the, the number of cases I took before the Emergency Powers Act was small. Right. I I, I tell my doctor friends all the time, I’m your best friend. They say, What are you talking about? I’m your my best friend. All you do is sue doctors. I said, What you don’t know is the 90% of the cases that I have prevented from going to claim because I have discouraged the plaintiff Right. From filing it where your name could have appeared on a claim and you never knew about it. And
Conrad Meyer (49:32):
You know, and, and let me just real quick and and I don’t interrupt you up your train of thought, Carrie, but let me ask you this. I teach, well I teach I talk to residents all the time, all the time during the year. I talk to lsu, I talk to Tula residents, different pools. And, and a lot of times we have medical malpractice seminars, Carrie. And, and one of the things they ask me is, well, how do we avoid getting sued? And the one thing I tell them is that communication,
Kerry Wicker (49:56):
Conrad Meyer (49:56):
Percent communication. I said, If you would treat these patients like they were your family members in terms of what they want to know and take the time, I said, even on an adverse outcome, you’re not gonna get sued. Would y’all agree with that?
Kerry Wicker (50:09):
A hundred percent. Let me tell you, and I’ll go a step further, a step further than that. It’s not just communication, Right. That’s that It is listening,
Conrad Meyer (50:17):
Kerry Wicker (50:18):
Conrad Meyer (50:19):
Y’all would both agree with that?
Kerry Wicker (50:19):
Doctors, doctors have a unique inability sometimes to listen because they believe that they’re the, the only ones that have anything of import to say. But oftentimes the patient has a lot to say that can be helpful in the treatment of the patient. Interesting. So listening skills for a physician are something that can always be improved upon.
Bobby Marlborough (50:40):
Conrad, unlike you, a lecture to nurses, a lecture resident, a lecture to doctors all the time, lsu, Jolene, I even go outta state and I do it and I tell ’em the same thing. You can be, I, I tell doctors this all the time. I said, you know, your best friend or the nurses in the hospital, they can either be your best friend or your worst enemy. And they look at me like I’m crazy . So I’m telling you, they can be your best friend of your worst enemy. And I said, If you don’t record stuff properly, that’ll get you in trouble. Mm-hmm. , if, like Carrie said, if you don’t listen, they know it. Mm-hmm. , the patient knows it. That’s true. And they will be insulted. I cannot tell you how many times patient clients have come to me and said he just didn’t hear and he wasn’t interested in what I had to say.
Conrad Meyer (51:34):
Kerry Wicker (51:35):
That’s so true.
Conrad Meyer (51:37):
So, gentlemen, I, I wanna, first off, I want to first thank you both for coming to the studio today. It’s been eye opening and, and I’m sure our listeners would really attest to what they’ve learned today. I think this is a very important issue. any final thoughts that you wanna leave the listeners with respect to this emergency order, the general state of affairs in terms of, of, of medical malpractice on the plaintiff’s side? Is there anything you wanna leave with them? today as we sit here on this very issue?
Bobby Marlborough (52:05):
If you feel strongly about it, talk to you representative, talk to your senator. It, it’s just not right that a group of people are immune from liability. The physicians change people’s lives for the good and the bad. I mean, and the only people who can help you right now are your legislators and your and your senators.
Conrad Meyer (52:28):
Bobby Marlborough (52:29):
We can’t do it all. I mean, we can’t,
Conrad Meyer (52:32):
And again, we, we take no position here. So, but I appreciate that Bobby. We’re gonna have, we’re gonna have i I plan on having the other side and, and, and seeing how they feel. But I’m glad, I know you feel strongly about this. Carrie, any final thoughts? Yes,
Kerry Wicker (52:44):
I, I would sum it up Conrad by saying this, what the Emergency Powers Act effectively did to plaintiff malpractice victims, medical malpractice victims. It, it made it from going from a difficult task to an impossible task. And that is the net effect of this entire thing. And that pretty much sums it up. And that is, as Bobby said, wrong, Not a little wrong, but a lot
Conrad Meyer (53:12):
Wrong. Interesting. Well, gentlemen, I really appreciate you guys coming on the show today. I wanna thank you very much for your insight, your input. And everyone do us a favor. Please feel free to send us an email at Chehardy Sherman our health law talk. I think we have it at podcast email address. So if you have any questions or comments about today’s podcast go ahead and send us an email. And if you want to hear anything on any topic-wise on the podcast, go ahead and send us an email and we’ll happily respond. Again, thank you for another outtake on Chehardy Sherman Williams Health Law talks. Conrad Meyers is signing out Until the next episode, everyone have a great day.
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Under the Louisiana Health Emergency Powers Act, specifically at LA. R. S. 29:771 (B)(2)(c), during a state of public health emergency, any healthcare providers shall not be civilly liable for causing the death or, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct. The statute cited herein has been evoked for a two-year period beginning on March 12, 2020 through March 12, 2022. During this two-year time period, healthcare providers have had immunity from civil prosecution resulting from medical malpractice negligence. The question is whether or not this statute, providing blanket immunity for general negligence to healthcare providers, during a healthcare declared emergency, creates unintended consequences for patients who are injured through negligence actions of a healthcare provider while being treated for medical ailments unrelated to the emergency declared by the governor for the state of Louisiana. This podcast delves into the plaintiff, or prosecution side, point of view and delves into the “unintended consequences” of giving providers blanket immunity for general negligence in carrying out their medical obligations to their patients. Conrad Meyer, board-certified healthcare attorney, sits down with special guests Bobby Malbrough, medical malpractice plaintiff attorney, and Carey Wicker, another medical malpractice plaintiff attorney, to discuss our guests point of view on this topic. This episode is part of a series on point and counterpoint regarding the Louisiana Health Emergency Powers Act, its constitutionality, its scope, the “unintended consequences,” and how this affects the public at large.
Health Law Talk, presented by Chehardy Sherman Williams, one of the largest full service law firms in the Greater New Orleans area, is a regular podcast focusing on the expansive area of healthcare law. Attorneys Rory Bellina, Conrad Meyer and George Mueller will address various legal issues and current events surrounding healthcare topics. The attorneys are here to answer your legal questions, create a discussion on various healthcare topics, as well as bring in subject matter experts and guests to join the conversation.
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