Blog

Wednesday, November 27, 2019 - 3:11pm
The California Medical Board ("Board") published its year in review for 2018-2019.  The entire report can be found here.
 
Of interest, the Board’s administrative actions against licensees have increased since last year, and the numbers of disciplinary outcomes—revocations and probations—has increased.  And, even though the vertical enforcement model ended on January 1, 2019, the model is still used in certain cases, including those that “involve allegations of sexual misconduct, impairment, or any case where there is an imminent threat to the public.”  The model included a joint investigation between the Board investigator and the Attorney General’s Office, with a DAG assigned to each investigation to assist in processing. 
Wednesday, November 20, 2019 - 5:00pm
The Medicare Open Enrollment Period is an annual period of time (ending December 7) when Medicare users decide whether to keep their coverage or go with another plan.  It is also a time of increased scams directed at seniors, aimed at getting personal and billing information from seniors.  Please gently remind the seniors in your life not to provide Medicare or personal information over the phone to someone who calls to ask for it.  And, make sure to check Medicare Summary Notices to be sure the charges are correct.  Failing to flag fraudulent charges could negatively affect your ability to get needed care in the future.  Read more about the scam here.
 
If you receive such a call, please contact the Federal Trade Commission at 1-800-MEDICARE or use this link
Wednesday, November 13, 2019 - 10:09am
It is now the law in California that all health care facilities and “other entities” report any written allegations of sexual abuse or misconduct, made by a patient, against a licensee within 15 days of receiving the complaint. The new law, which responds to USC’s gynecological patient scandal, began as Senate Bill 425 in the 2019 – 2020 legislative year, was approved by the Governor on October 12, 2019.  The bill can be found here: Senate Bill 425.
 
This creates new sexual misconduct reporting by adding Business & Professions Code section 805.8.  It applies to all health care facilities and “other entities,” including post‐secondary educational institutions that make arrangements for any healing arts licensee to practice or provide care to patients. All such reports are confidential, not subject to discovery, and comes with immunities against civil and criminal liability for those making any report. But, the licensing board is required to investigate any such complaint. And, failure to make a required report results in fines and administrative sanctions for unprofessional conduct.
 
 
Thursday, October 24, 2019 - 5:57am
The Cannabis Industry got a big bump recently on the federal level with the passage of a bill in the House of Representatives that would allow banks to do business with cannabis related businesses. The Secure and Fair Enforcement Banking Act, known as the SAFE Banking Act, passed the House of Representatives on September 25, 2019 by a vote of 321 to 103. The bill would allow a “safe harbor” for financial institutions, as well as other ancillary businesses, that might conduct business with cannabis related companies. Proponents of the bill, including sponsor Ed Perlumtter of Colorado, argue that the bill would stifle violent crime against employees and store owners, reduce money laundering, and allow the efficient collection of taxes.
 
The next big hurdle for the bill becoming law will be the Senate banking committee considering a parallel bill introduced by Democratic Senator Jeff Merkley of Oregon. The indication is that the Senate Committee on Banking may hold a vote on a cannabis banking bill next July, but it remains to be seen whether it will be Senator Merkley’s bill, or an amended bill crafted by the Senate Committee on Banking.
 
At the State level, the California Department of Food and Agriculture ("CDFA") is preparing the groundwork to allowing licensees to change designated responsible parties on issued licenses. In discussing the matter with staff, CDFA is prepared to take in requests for changing a designated responsible party pursuant to California Code of Regulations Title 3 Div. 8. Chapter 1 Section 8204. CalCannabis has informed applicants that although they do not have the technological capability to document the ownership change in the online portal, they will accept mailed documents requesting the change. Stay tuned.
Wednesday, October 16, 2019 - 11:42am
What happens when a person is seriously injured, but their medical expenses far exceed what can be recovered from the defendant’s insurance coverage?  Can the injured person’s health insurance carrier get all the money back they paid for their medical care, even if that leaves the person not fully compensated (not “made whole”)?  The language of the insurance contract itself affects what recovery rights the health insurer has in this situation, but the Make Whole Rule is generally used when an injured party seeks a waiver of the contractual obligation to reimburse medical insurance and automobile medical payment benefits to the insurer.  This obligation usually arises in cases after judgment or settlement, when the insurer shows up demanding reimbursement for benefits it has already paid.  The reasoning behind the Make Whole Rule is that the insurer should not be reimbursed for benefits it paid unless and until the plaintiff insured is first “made whole,” that is, fully compensated for their injuries. 
 
California adopted the Make Whole Rule in Sapiano v. Williamsburg National Insurance Company (1994) 28 CA 4th 533, holding that a commercial vehicle insurer in a subrogation claim cannot “assert its contractual right to repayment where the total third party insurance is insufficient to compensate the full loss suffered by the insured.”  The plaintiff has not been made whole if the amount recovered from third-party tortfeasors (defendants) does not fully compensate them for their injuries.  In such cases, insurance companies should not be allowed to receive reimbursement through their right to subrogation. This is the primary concept of the Make Whole Rule. There should be no right to subrogation when the injured party has not been made whole.  Janssen Malloy LLP is currently representing a client who was seriously injured in a motorcycle/vehicle collision, with over $385,000 in paid medical expenses, with a defendant who has only a $50,000 policy limit (and no assets beyond that policy to satisfy a judgment).  We are demanding a waiver of the health insurer’s subrogation reimbursement claim on the basis that our client has clearly not been made whole.
 
Insurers try to avoid the Make while Rule by altering the contract language to include a clause giving the insurer’s reimbursement rights priority, even if the policyholder has not yet been made whole.  Careful review of the contract language is required, since such clauses are strictly construed against the party that drafted them (the insurance company).  Since the insurer has already been paid a premium to cover the risk that the insured may need medical expenses paid under the policy, it is hardly fair that they also attempt to also take the limited recovery of their insured policyholder.  Injured persons need experienced and knowledgeable trial counsel to be fully and fairly compensated, and the attorneys at Janssen Malloy LLP stand ready to assist when need arises.