Posts Categorized: Fall/Winter 2013

IN THIS ISSUE: Fall/Winter 2013

Sontag, David  Jerry Tichner Bio photo  cosgrove

David Sontag, Jerry Tichner, and Meg Cosgrove
Co-editors, Health Law Reporter

As we approach the one year anniversary of the Boston Marathon bombing, we reflect not only on the tragic scene that unfolded that day but also on the tremendous displays of community and the human spirit that followed thereafter.  Each person affected has their own story to tell; however, Jamie Katz, General Counsel and a Senior Vice President at Beth Israel Deaconess Medical Center, provides a unique perspective in his article on the Medical Center’s response to the bombings as well as the challenges it was confronted with when both suspects, Tamarlan and Dzohkar Tsarnaev, were brought to the Medical Center for treatment.

We are also excited that Julie Myers from the Attorney General’s office was able to spend some time with Lois Johnson, General Counsel of the Health Policy Commission.  In her interview, Julie garnered insights from Lois about the mission of the HPC as well as ways in which the Commonwealth continues to be on the cutting edge of health care policy in the United States.

In addition, this edition of the Reporter includes an assessment of the public health issues underlying the tanning salon industry and the dangers associated with an apparent lack of enforcement related to the false and deceptive advertisements issued by certain members of the industry.  Robert Ciccia suggests that a litigation strategy similar to that employed in the cigarette industry for its “light” cigarettes may be a viable solution to the issue. 

This edition includes summaries on four recent health law cases in Massachusetts addressing topics ranging from commitment under G.L. c. 123, § 7 to the awarding of treble damages under the Massachusetts Wage Act.

On a final note, we wanted to recognize the hard work of all of our authors and peer reviewers as well as the members of the Communication Committee who work to ensure that this publication remains the preeminent  snapshot of current developments in health law and policy in Massachusetts!

Opinion Pieces:

BIDMC and the Boston Marathon Bombings
By Jamie Katz

Litigating Tanning Salons in Massachusetts: A Policy Proposal
By Robert A. Ciccia

Policymaker Profile: Lois Johnson
By Julie Meyers

Health Law Case Briefs: 

In the Matter of C.B.
By Sarah E. Lowdon

HipSaver, Inc. v. Kiel
By Maggie Schmid

N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Insurance Company
By Tucker W. Wade

Alla Feygina v. Hallmark Health System, Inc., et al.
By Kelly McGee

Litigating Tanning Salons in Massachusetts: A Policy Proposal

By: Robert A. Ciccia[1]

Introduction

In February of 2012 Rep. Henry Waxman (D-CA), a ranking member of the United States House of Representatives Committee on Energy and Commerce, released a report concerning false and misleading information provided by tanning salons across the nation.[2] The report detailed the risks associated with indoor tanning, as well as the strategies employed by the tanning industry to improve tanning rates. However, the report fell short of recommending any policy to curb the use of indoor tanning. This article analyzes tanning in Massachusetts, and recommends litigation as a policy initiative to counter false and misleading information disseminated by tanning salons.

To address the issue, the first section briefly describes the health risks and public health impacts associated with indoor tanning. This is followed by an examination of the veracity of several local tanning salons’ health claims. Next, the article details current federal and state laws applicable to the tanning industry including the tanning industry’s history of false and misleading advertisements, along with the Federal Trade Commission’s (“FTC”) past decisions. In addition, Massachusetts’s Consumer Protection Act is introduced as a potential theory of liability. The last section of the article focuses on possible consumer protection actions and addresses potential issues that may arise.

The Problem

Indoor tanning is a serious health issue. The World Health Organization recently classified tanning beds as “carcinogenic to humans,” the organization’s highest risk category.[3] Tanning is linked to several types of skin cancer: basal cell carcinoma, squamous cell carcinoma, and melanoma.[4] Despite these known risks, it is estimated that 30 million Americans use indoor tanning services every year; many of these users are young women between the ages of 18-29.[5] As a result of increased tanning rates, skin cancer is now the most common cancer in the United States.[6] Moreover, while the incidence of many other cancers is falling, the incidence of melanoma is rising faster than the seven most common cancers.[7]

Complicating this issue further are social beliefs that a tan is a sign of health, beauty, and success.[8] Additionally, individuals who tan do not perceive tanning risks and are pressured to tan by friends or family members who engage in the same behavior.[9] Although several public education campaigns were launched to curb tanning rates, several studies indicate that educational efforts alone are insufficient to decrease such rates.[10] Several states have passed legislation limiting the tanning services available to minors, but many tanning facilities fail to comply with these regulations because there is little state enforcement.[11] Thus, this article recommends litigation to raise awareness of this public health issue, reprimand tanning salons for deceptive business practices, and spur societal change. However, before delving into a solution, it is critical to understand the marketing techniques tanning salons employ in Massachusetts.

The Strategic Marketing of Tanning Salons in Boston

Tanning salons often employ misleading advertisements to promote indoor tanning. Despite the well-publicized association between indoor tanning and skin cancer, many tanning salons advertise that their services are safe and healthy. Several tanning salons across Boston perpetuate these false claims.

For example, Tanorama, a tanning salon located on Newbury Street, an upscale shopping district of Boston, stated on their website that indoor tanning is “safer than the sun.”[12] In the predominately white working class neighborhood of South Boston, Sobella Salon stated on their website that “[t]anning beds help the body produce more vitamin D that helps keep your bones, teeth and joints very healthy . . . some studies conducted show that a person’s mood significantly improves when they use a tanning bed.”[13] Last year, the Tan Man Sun Spa, which is also located in South Boston, posted on its Facebook page that “new studies show that the large amount of Vitamin D your sessions produce actually burns fat cells, promotes weight loss & increases muscle strength.”[14] Many salons commonly cite the benefits of Vitamin D production, despite the fact that physicians recommend oral supplements rather than increased exposure to UV radiation.[15] Advertisements often state that tanning can even be used as treatment for seasonal depression. The Tan Man Sun Spa published an update on its Facebook webpage that claimed indoor tanning produces “serotonin” and “endorphins” which help combat seasonal depression.[16] However, these health claims are without a verifiable scientific basis. Only the FDA can classify and approve devices for health purposes, presently UV tanning lamps are limited to the use of tanning the skin.[17]

There are also health claims that are less explicit. Campus Tan, which has several franchises near college and university populations, takes such a route. On its webpage, Campus Tan advocates that users avoid use of SPF lotion during indoor tanning because their booths allow for controlled exposure.[18] However, many health professionals state that protective sun lotion should be used prior to receiving large amounts of UV exposure –indoor tanning would fall under such a category.[19] Campus Tan also stated that it used “Browning Lamps” instead of what it referred to as “Burning Lamps,” and while it is believed that such a statement is meant to convey a competitive advantage over other salons, there is an implicit claim that its lamps are healthier because they do not cause burns.[20] Physicians also agree that any manner of indoor tanning, unless prescribed for medical necessity, is not healthy.[21]

The Smart Tan franchise has three locations across the Boston area, and the franchise is one of the more visible salons in Boston. Its business slogan is “Faster, Safer, and Less Costly,” which conveys that it is less dangerous than its competitors. Smart Tan is most notable for a TV advertisement that aired on both MTV and E! Entertainment; channels which tend to cater to a young female demographic. The TV advertisement claimed that several medical studies advocated for increased sun exposure, and by extension, more indoor tanning.[22] On its website, Smart Tan also lists several “proven benefits” to indoor tanning and links to other pro-tanning websites.[23]

Many, if not all of these advertisements, use images of slim young women to help perpetuate the notion that tanning is desirable, healthy, and beautiful.[24] Images of women in bathing suits along with bright radiant colors used in the websites’ design are commonly used in these kinds of advertisements.[25] These images, along with the false and misleading messages they convey, are harmful to the public’s overall perception of tanning. The totality of these advertisements compounds the harmful effects of tanning by promoting its use through ecological and social factors.

There are several key regulations and legal remedies available to protect consumer rights against false and misleading advertisements, including the Federal Trade Commission Act (“FTC Act”).  In Massachusetts, the state’s consumer protection act also can be employed when businesses engage in unfair or deceptive practices.

The Role of the Federal Trade Commission

The FTC Act established the Federal Trade Commission in 1914. Since then, the FTC has been responsible for protecting “both business and the public from anticompetitive behavior and unfair and deceptive acts and practices.”[26] Typically if a business is charged with “unfair and deceptive” practices, the FTC will investigate to determine if a violation of the commission’s rules occurred. However, only the FTC can bring a claim under the FTC Act.

Over the past two decades, the FTC has taken action several times to curb the deceptive claims and practices of the tanning industry. In August 1997, the FTC settled charges with California SunCare. The charges arose from the company’s assertion that, “moderate exposure to the ultraviolet radiation of the sun and in indoor tanning salons is not harmful.”[27] The FTC ordered California SunCare and its CEO to cease from making such health claims, and required the company “to have scientific substantiation for any claims about the health benefits of UV exposure.”[28] Despite the settlement by the FTC, tanning salons continued to disseminate false and misleading material.

In 2008, the Indoor Tanning Association, a prominent lobbying group that represents tanning facilities and suppliers, launched a nationwide campaign to depict indoor tanning as safe and healthy.[29] In January 2010, the Indoor Tanning Association settled with the FTC on charges of “making false health and safety claims” concerning tanning. The terms of the settlement required the Indoor Tanning Association to cease any further marketing campaigns premised on unsubstantiated medical claims.[30] In addition, the FTC required any future advertisements making health claims to contain disclosures on the risks of developing skin cancer. The FTC also published a consumer factsheet to warn consumer of potential risks.

Although these settlements were lauded as progress against the tanning industry, the FTC’s continued regulation of the tanning industry is relatively weak. In fact, many tanning salons continue to tout other benefits of UV rays on their website. Nonetheless, the FTC settlements are important litigation resources for consumer protection claims.

Massachusetts Consumer Protection Act

In 1967, the Massachusetts Consumer Protection Act (“Chapter 93A”) was enacted to declare unfair and deceptive acts of business unlawful.[31] The law is one of the broadest and most powerful consumer protection statutes in the country.[32] It created new consumer rights and procedures to enforce these rights.[33] The law encompasses any acts “in the conduct of any trade or business,” and includes: advertisements, offerings of sale, the sale, and distribution of services. The purpose of the law was to ensure that businesses properly disclosed information, and did not profit from unfair practices. Chapter 93A is often described as a “Little FTC Act” because it tracks the language of the FTC Act, however Chapter 93A permits consumers and businesses to pursue private remedies against violators —unlike the FTC Act, which only permits the FTC to bring claims.[34]

False advertisements are treated as deceptive acts under Chapter 93A.[35] The requirements for a deceptive act are not as stringent as other common law principles because courts have interpreted Chapter 93A to extend far beyond the scope of the common law principles of fraud and deceit.[36] For example, there is no requirement to prove the defendant’s intent under deception; proof that the plaintiff relied on the deceptive act is sufficient for a claim.[37] Additionally, Section 2 of Chapter 93A permits state courts to use the interpretations of the federal courts and the FTC to determine if a business practice is deceptive. This is beneficial for consumer advocates because recent case law in Massachusetts has confirmed that a violation of the FTC Act is a violation of Chapter 93A.[38]

Another benefit to consumer claims under Chapter 93A is that the law is receptive to class action lawsuits. Traditionally Rule 23 of the Massachusetts Rules of Civil Procedure (“Rule 23”) governs class action certification in Massachusetts. For class action consumer protection claims, however, Section 9(2) of Chapter 93A governs over the provisions of Rule 23.  As the case law in Massachusetts points out, Rule 23 has more rules and prerequisites than Chapter 93A, thus consumer protection claims are more likely to be certified in Massachusetts than a traditional class action claim in the state.[39]

Consumer Protection Case Law

While no tanning related consumer protection claim has taken place in Massachusetts, in 2008 the Third Circuit decided Nafar v. Hollywood Tanning Systems, Inc.[40] The case was heard on appeal after a district court judge certified a nationwide class of tanning customers. The lawsuit was primarily based on violation of the New Jersey Consumer Fraud Act, which is similar to Chapter 93A.[41] In Nafar, the plaintiffs alleged that Hollywood Tanning deceived and failed to warn consumers that exposure to UV rays would increase their risk of cancer.[42] After reviewing the district court’s decision, the Third Circuit vacated the class certification. The Third Circuit held that the district court erred because of several procedural issues: (1) the district court failed to conduct an adequate choice-of-law analysis; (2) failed to consider causation; and (3) did not determine if res judicata was applicable. However, there are several issues that would distinguish the Third Circuit’s ruling in Nafar to a potential case brought in Massachusetts.

First, Nafar is inapplicable in Massachusetts because the Third Circuit’s ruling is only persuasive in the region governed by the court. Massachusetts has its own case law concerning class action consumer fraud lawsuits. A more analogous case is Aspinall v. Philip Morris Companies, Inc., heard by the Supreme Judicial Court of Massachusetts in 2004.[43] The case focused on the “certification of a class of purchasers of “light” cigarettes.”[44] In their complaint the plaintiffs alleged, “that the marketing of Marlboro Lights as “light” cigarettes that deliver “lowered tar and nicotine” was deceptive under [Chapter 93A], entitling them to monetary damages.”[45] The primary issue in the case was whether the defendants caused actual harm to the plaintiffs. This was a complicated dilemma for the Court because each cigarette delivered different levels of nicotine and tar, depending on each smoker’s habits. This is a similar dilemma tanning plaintiffs would face because UV ray levels may differ across individuals. Nonetheless, the Court certified the class and determined that the purchase of a falsely advertised product constituted an “injury” under Chapter 93A.[46] Detractors warned that Aspinall would open the gates to consumer class action litigation due to the broad definition of injury, but the case did not have such a drastic effect in Massachusetts.[47] Instead the case is commonly cited in many consumer rights claims.

The Texas Attorney General’s Office brought lawsuits against Darque Tan in 2008[48] and Euro Tan in 2010[49] for violations of several state laws. In both cases the state sought an injunction against the vendors for their health based tanning advertisements.[50] The justification for the attorney general’s claim was the tanning salons’ dissemination of false and misleading advertisements to consumers. In the Euro Tan complaint, the state referenced the use of a website and colorful brochures to promote misleading health benefits of tanning. These health claims included the benefits of Vitamin D for those with autism, autoimmune illnesses, other cancers, and chronic pain.[51] Other health claims stated that tanning beds would lower blood pressure, decrease pre-menstrual syndrome symptoms, increase muscle strength and improve the immune system.[52] The suit was premised on violations of the Texas Health and Safety Code, which prohibits tanning salons from claiming health benefits, and the Texas Deceptive Trade Practices Act, which prohibits deceptive advertising —similar to Chapter 93A. Presently, the Euro Tan case is pending in court. However, after several years of litigation, the Darque Tan case was recently settled in March of 2013. In addition to paying monetary damages, the court entered an injunction to prevent Darque Tan from claiming any health benefits in future advertising campaigns.[53] Thus proving the potential efficacy, at least in a case brought by the state’s attorney general, of a consumer protection claim based on false and misleading tanning advertisements. However, there is no guarantee that the Massachusetts Attorney General Office will ever take up such a case.

The Case for Tanning Litigation in Massachusetts

In order to facilitate change in Massachusetts, litigation is recommended as a policy initiative. The purpose of such action is to limit consumer fraud based on the false and misleading health claims tanning salons continue to assert. Such action should be premised under the Massachusetts Consumer Protection Act, and ideally brought in state court. While individual plaintiffs can bring such a lawsuit, a class action lawsuit is recommended due to the influential nature of such cases. Although federal removal may arise under federal class action rules,[54] a state claim is possible if the class is confined to residents the state of Massachusetts. This would avoid the procedural issues such as class certification, diversity, amount in controversy, and choice of law, that arose in Nafar.

The next issue is to establish deceptive advertising. In this case, the advertisements at issue are those proclaiming the benefits of Vitamin D, the safety of indoor tanning, and dispelling associations with skin cancer. Although there is no definition of deceptive acts in Chapter 93A, prior FTC cases are used to define the term.[55] A class could rely upon the California SunCare or International Tanning Association FTC settlements to prove that such advertisements were deceptive because the health claims made by many Boston tanning salons are similar, if not identical, to those made by California SunCare and the International Tanning Association. Such deceptive advertisements would likely be violations of Chapter 93A. The fact that the FDA has not approved the use of tanning devices for any other purposes also may be used to prove deceptive advertisements.

Tanning salons may claim waivers and warning as a defense for these consumer protection claims. These waivers are now common at many tanning salons, and often attempt to eliminate consumer protection claims. However, tanning waivers or warnings are likely to be ineffective in Massachusetts for two reasons. In Feeney v. Dell, Inc., the Massachusetts Supreme Court invalidated a waiver located in the arbitration clause of a consumer contract.[56] The waiver attempted to eliminate a consumer’s right to bring a class action consumer protection claim. In its ruling, the court stated that such a waiver “is not enforceable because it is contrary to the fundamental public policy of the Commonwealth favoring consumer class actions” under Chapter 93A.[57] The Feeney ruling would not enforce consumer protection waivers in Massachusetts. Tanning salons may also claim they provided warnings to customers, on the health risks. However, even if a salon provides healthy warnings, a Massachusetts statute dictates that “[t]he liability of a tanning facility operator or the manufacturer of a tanning device shall not be affected by the giving of the warnings.”[58] The statute, in effect, eliminates health warnings as a defense. Thus, neither waivers nor warnings would serve as a proper defense for tanning salons in Massachusetts.

The last requirement of such a lawsuit is damages. This requires that the plaintiff show “that he or she has been ‘injured’ in the sense that there has been an invasion of a consumer’s legally protected interests.”[59] This requirement can be satisfied principally in two ways: (1) if the consumer developed cancer, or any other illness associated with tanning; or, (2) if a consumer paid for tanning services and sought to recover the price (e.g., misled due to false or fraudulent advertising).

One major difficulty in proving damages is causation. This is especially burdensome in damages for cancer because there are a variety of variables that may increase risk. For example, if the plaintiff were both an outdoor sunbather and indoor tanning salon user, the causation link would weaken between a particular tanning salon and the cancer claim.

Stronger arguments could be made for the price paid for tanning services if a consumer would not have sought such services “but for” the misleading advertisements. Even if the price of tanning services is the only remedy recovered, a plaintiff can recover reasonable attorney’s fees and treble damages if the violation was knowing and willful under Chapter 93A. While treble damages are difficult to prove, given the knowing and willful standard, recovery is feasible due to the tanning industry’s disregard of prior FTC rulings. If treble damages and attorney’s fee can be recovered, this would likely result in a substantial impact on tanning providers.

Conclusion

It is well documented that the incidence of skin cancer is rising in the United States, despite the fact that many other cancer rates are in decline. This is partly due to the misleading and false advertising tanning salons employ to improve their business earnings. These advertisements often trumpet false health benefits and the safety of their services, while attempting to dispel the proven association between indoor tanning and skin cancer. The FTC has ruled twice that such assertions are false, and has reprimanded the tanning industry for its deceptive acts. Nonetheless, such deceptive practices continue and are especially prevalent in Massachusetts.

In order to combat the misleading rhetoric, litigation is suggested as a possible public policy initiative. A similar campaign was undertaken against cigarette companies, and although the process was long and difficult, it ultimately helped to sway public opinion and public policy against tobacco use. Massachusetts is an ideal location for such action to take place. The state’s consumer protection act, Chapter 93A, is one of the broadest consumer protection statutes in the country. It also provides lenient procedures for class certification, the ideal lawsuit to effectuate change, and the state has relevant case law supporting large consumer protection lawsuits. Massachusetts’ law would also invalidate any waiver or warning that salons attempt to use as a defense. Most importantly, Chapter 93A contains damage provisions that would cause tremendous injury to the tanning industry if a suit were successful.

Massachusetts provides a unique venue for tanning litigation to occur, and if successful, it can effectuate tremendous change for consumers and greater public health for the state. Although a statewide ban on indoor tanning is the ideal solution, there is little evidence such an effort could easily be achieved. Litigation is a slow, expensive, and difficult process, but it remains a powerful tool that public health advocates should consider to ultimately address the tanning issue.

EXHIBITS

Exhibit 1: Sobella Salon Advertisement

 Tanning Litigation Exhibit 1 

Exhibit 2: The Tan Man Spa Facebook Update

Tanning Litigation Exhibit 2

Exhibit 3: The Tan Man Facebook Update

Tanning Litigation Exhibit 3

 

Robert A. Ciccia, Esq. is a graduate of Northeastern University School of Law (J.D.) and Tufts University School of Medicine (M.P.H). He is interested in public health litigation and healthcare delivery. While in law school Robert was a staff member of the Northeastern University Law Journal and interned at Millennium Pharmaceuticals, Public Health Advocacy Institute, the U.S. District Court in Boston with the Honorable George O’Toole, and the Miami-Dade State Attorney’s Office. 

 


[1] The author would like to thank Mark Gottlieb of the Public Health Advocacy Institute, and Marcia Boumil of the Tufts University School of Medicine for their input and continued support throughout the drafting of this article.

[2] False and Misleading Health Information Provided to Teens by the Indoor Tanning Industry: Investigative Report. 112th Cong. (2012) (U.S. House Energy and Commerce Committee).

[3] Fitiha El Ghissassi et al., on behalf of the WHO International Agency for Research on Cancer, Monograph Working Group, A Review of Human Carcinogens–Part D: Radiation, 10 The Lancet Oncology 751 (Aug. 2009), available at http://www.thelancet.com/journals/lancet/article/PIIS1470-2045(09)70213-X/fulltext.

[4]  Margaret R. Karagas et al., Use of Tanning Devices and Risk of Basal Cell and Squamous Cell Skin Cancers, 94 J. Nat’l Cancer Inst. 224 (2002).

[5] Kwon HT, Mayer JA, Walker KK, Yu H, Lewis EC, Belch GE. Promotion of frequent tanning sessions by indoor tanning facilities. 46 J Am Acad Dermatol 700 (2003).

[6] Rogers, HW, Weinstock, MA, Harris, AR, et al. Incidence estimate of nonmelanoma skin cancer in the United States, 146 (3)Arch Dermatol 283, 287 (2010).

[7] Ries LAG, Melbert D, Krapcho M, Stinchcomb DG, Howlader N, Horner MJ, et al. (eds). SEER cancer statistics review, 1945-2005. Bethesda, MD: National Cancer Institute.

[8] See Heckman, C. J., Manne, S. L., Kloss, J. D., Bass, S. B., Collins, B., & Lessin, S. R. Beliefs and intentions for skin protection and UV exposure in young adults. 35(6) American Journal of Health Behavior 699, 711 (2011).

[9] See Id.

[10] Mawn V.B., Fleischer Jr. A.B., A survey of attitudes, beliefs, and behavior regarding tanning bed use, sunbathing, and sunscreen use, 29 (6) Journal of the American Academy of Dermatology 959 (1993).

[11] Forster J.L., Lazovich D., Hickle A., Sorensen G., Demierre M., Compliance with restrictions on sale of indoor tanning sessions to youth in Minnesota and Massachusetts, 55 (6) Journal of the American Academy of Dermatology, 962 (2006).

[13] Exhibit 1: Sobella Salon Advertisement.

[14] Exhibit 2: The Tan Man Spa Facebook Update..

[15] See False and Misleading Health Information Provided to Teens by the Indoor Tanning Industry: Investigative Report. 112th Cong. (2012) (U.S. House Energy and Commerce Committee).

[16] Exhibit 3: The Tan Man Spa Facebook Update.

[17] 21 C.F.R. § 878.4635 (“An ultraviolet lamp for tanning is a device that is a lamp (including a fixture) intended to provide ultraviolet radiation to tan the skin.”).

[19] Joel J. Hillhouse, Arthur W. Stair and Christine M. Adler, Predictors of sunbathing and sunscreen use in college undergraduates, 19(6) Journal of Behavioral Medicine 543-561 (2012).

[21] Gary Mendese and Barbara A. Gilchrest, Selected Indoor Tanning Myths and Controversies, Shedding Light on Indoor Tanning 121-133 (2012).

[22] http://smarttansalons.com/ last accessed 3/18/14.

[25] Id.

[26] 1 Fed. Trade Comm’n. § 1:1 (2011).

[27] FTC Announcements of 1997, Federal Trade Commission. http://www.ftc.gov/opa/1997/02/petapp10.shtm.

[28] Id.

[29]Indoor Tanning Association Settles FTC Charges That It Deceived Consumers About Skin Cancer Risks From Tanning, Federal Trade Commission. http://www.ftc.gov/opa/2010/01/tanning.shtm.

[30] Id.

[31] August Horvath, John Villafranco, Stephen Calkins, Consumer Protection Law Developments 468 (2009).

[32] See Matthew S. Furman, How Chapter 93a Consumers Lost Their Day in Court: One Legislative Option to Level the Playing Field, 15 Suffolk J. Trial & App. Advoc. 107 (2010).

[33] August Horvath, John Villafranco, Stephen Calkins, Consumer Protection Law Developments 468 (2009).

[34] Justin J. Hakala, Follow-On State Actions Based on the FTC’s Enforcement of Section 5, 1, FN 3 (2008). available at: http://www.ftc.gov/os/comments/section5workshop/537633-00002.pdf.

[35] 52 Mass. Prac., Law of Chapter 93A § 4.6

[36] See August Horvath, John Villafranco, Stephen Calkins, Consumer Protection Law Developments 468, 469 FN 1019 (2009).

[37] Id.

[38] August Horvath, John Villafranco, Stephen Calkins, Consumer Protection Law Developments 289 (2011).

[39] 52 Mass. Prac., Law of Chapter 93A § 5.10.

[40] Nafar v. Hollywood Tanning Sys., Inc., 339 F. App’x 216 (3d Cir. 2009).

[41] Sean Wajert, Third Circuit Vacates Class Certification In Consumer Fraud Tanning Case, Mass Tort Defense. available at: http://www.masstortdefense.com/2009/08/articles/third-circuit-vacates-class-certification-in-consumer-fraud-tanning-case/.

[42] Nafar v. Hollywood Tanning Sys., Inc., 339 F. App’x 216, 224 (3d Cir. 2009).

[43] Aspinall v. Philip Morris Cos., 442 Mass. 381, 385 (2004).

[44] Donald J. Savery, Brandon L. Bigelow, Aspinall One Year Later: Making Sense of “Similar Injury” in Claims Under Chapter 93a, Section 9, Boston B.J., November/December 2005, at 10.

[45] State High Court Ruling Departs from Tort Principles in Consumer Protection Case, 2005 WL 310059 (4th Cir. Feb. 10, 2005).

[46] Donald J. Savery, Brandon L. Bigelow, Aspinall One Year Later: Making Sense of “Similar Injury” in Claims Under Chapter 93a, Section 9, Boston B.J., November/December 2005, at 10.

[47] Id.

[48] Attorney General Abbott Resolves Health Claims, Marketing Issues with Tanning Salon Operators, Attorney General of Texas, https://www.oag.state.tx.us/oagnews/release.php?id=4318.

[49] Plaintiff’s Original Petition and Application for Permanent Injunction, State of Texas v Ryan, https://www.oag.state.tx.us/newspubs/releases/2010/040510eurotan_pop.pdf.

[50] Id.

[51] Attorney General Abbott Charges Euro Tan of San Antonio With Violating Health and Safety Laws. Attorney General of Texas, https://www.oag.state.tx.us/oagnews/release.php?id=3332.

[52] Id.

[53] Id.

[54] Congress passed the Class Action Fairness Act of 2005, in an attempt to curtail the role of state courts in large class action cases by expanding federal court jurisdiction over certain types of class action cases. 28 U.S.C. §§1332(d), 1453, and 1711–1715. In essence, the law eases federal class requirements with regards to numerosity, diversity, and amount in controversy. William Rubenstein, Understanding the Class Action Fairness Act of 2005, UCLA Program on Class Actions. 2005 at 5. These changes thereby allow class action defendants to remove a case from state to federal court, a venue where judges may be less likely to certify nationwide classes than state court judges. Id. at 15.

[55] 52 Mass. Prac., Law of Chapter 93A § 4.5.

[56] Feeney v. Dell Inc., 454 Mass. 192 (2009).

[57] Feeney v. Dell Inc., 454 Mass. 192, 193 (2009).

[58] Mass. Gen. Laws Ann. ch. 111, § 212 (West).

[59] 52 Mass. Prac., Law of Chapter 93A § 4.18.

 

Policymaker Profile: Lois Johnson, General Counsel of the Health Policy Commission

By: Julie Myers, Esq.

In August 2012, Governor Patrick signed into law the third wave of health care reform in the Commonwealth, Chapter 224 of the Acts of 2012: “An Act Improving the Quality of Health Care and Reducing Costs through Increased Transparency, Efficiency and Innovation” (“Chapter 224”).  A major provision of Chapter 224 was the creation of the Health Policy Commission (“HPC”), an independent state agency charged with setting and enforcing the health care cost growth benchmark, certifying new payment methods and care delivery models and improving access to affordable and quality healthcare.

Over the last thirteen months, the HPC has made significant strides in its implementation of Chapter 224.  In addition to holding almost 40 public commission, committee or advisory council meetings, the HPC has published a report on consumer-driven health plans, issued guidance on the prohibition of mandatory nurse overtime, initiated the first cost trend analysis using the All Payer Claims Database, and developed a community hospital grant program.  This past October, the HPC held its first annual health care cost trends hearing, a two day event focused on the public examination of health care costs, and in December 2013 the HPC issued its first cost and market impact review report.

Lois Johnson has served as General Counsel to the HPC since its inception. Through the efforts of Ms. Johnson and the team of talented people comprising the HPC, Chapter 224 will continue its successful rollout and help the Commonwealth meet its cost containment and quality improvement goals, as well as position Massachusetts as a national leader in innovative health care policy.  Ms. Johnson was able to take time and discuss her career as well as her achievements working on behalf of the Commonwealth during this dynamic time in health law and policy.

 

Lois, could you give a brief description of your career path? Did you intend to focus on healthcare when you decided to go into the legal profession?

Sure. I can say that I definitely did not begin my legal career with a particular goal to get into health policy. After law school, I went to work for a big firm where I practiced labor and employment law.  Then, I took a bit of a detour and got a fellowship at the Georgetown Women’s Law and Public Policy Program where I worked at the Women’s Legal Defense Fund and focused on issues affecting women workers. It was the era of Clinton health reform, and so one of the projects I worked on was analyzing the effect of various proposals and legislative drafts on women workers.  From there, I practiced labor and employment law for a number of years representing individual and organized employees including those working at health care facilities such as hospitals or nursing homes. After that, I went to work at the Massachusetts State House as Counsel for the Senate Ways and Means Committee where our committee was charged with writing the state budget and reviewing major pieces of policy legislation. You can’t work on the state budget without dealing with health care issues because it represents such a significant portion of our state spending.

What were the major issues in health care when you were working on the state budget?

While working on the state budget, I focused on long term care, in particular the direct-care workforce, the people who are caring for our loved ones and provide daily living services and support to persons with disabilities and chronic care needs in facilities and in the community.  I also worked to develop career ladders and programs to both improve the quality of the care and the status of those workers.  During my time at the Senate Ways and Means Committee I developed an understanding of and interest in state government.  After my time at the State House, I was thrilled to then work for Attorney General Martha Coakley in the Health Care Division at the Office of the Attorney General (“AGO”).  It was there that I developed most of my knowledge of the current state of health care policy in Massachusetts and really began to learn about health care financing and the industry itself from both providers and insurers.

You were on the forefront of the AGO’s cost containment efforts, correct?

Working at the AGO was an incredible opportunity to develop my knowledge and be a part of health policy development in Massachusetts. One of the things I am most proud of was being a part of the AGO’s cost trends work and contributing to the series of legislative efforts since Chapter 58 of the Acts of 2006 focusing on health care cost containment.

Let’s talk more about your work at the AGO and your transition to working under Chapter 224 at the HPC?

So, for example, following Chapter 305 of the Acts of 2008 (“Chapter 305”), in which the Attorney General was authorized to perform cost trends examinations and obtain information from payers and providers, I worked on that effort for the first three reports. It was very exciting and a great opportunity to be part of a team of excellent attorneys.  I also worked on the legislative effort for Chapter 288 of the Acts of 2010 (“Chapter 288”) and then Chapter 224.  At the HPC, I am able to put those efforts into action.

Can you discuss the evolution of these particular statutes?

Chapter 305 was the beginning of a series of statutes to improve transparency in our State’s health care system.  It inaugurated the annual cost trends hearings and gave the Attorney General authority to conduct and participate in those hearings and perform cost trends examinations. It really initiated a watershed of transparency.  Through that first cost trends report, we identified the key metrics of health care costs and measures of efficiency — relative prices and total medical expenses — which were later codified in Chapter 288 and are now publicly reported routinely to our sister agency Centers for Health and Information Analysis.  Thereafter, Chapter 224 builds from Chapter 288 with a more comprehensive look at the framework for promoting value in health care as well as greater transparency to contain costs and improve quality overall.

The broad construct of Chapter 224 is to set a state-wide bench mark for health care cost growth.  To monitor this benchmark, Chapter 224 created the HPC as an independent agency to monitor performance under that benchmark through public hearings and dialogue between providers, insurers, consumers and government.  Chapter 224 also sets up a number of ways in which we can try to meet that benchmark and evaluate performance, for example, encouraging alternative payment methods and alternative delivery system models like ACOs and patient centered medical homes, programs to invest in community hospitals and cost and market impact reviews.

How does it feel to work for such a young agency on new legislation? Is it exciting, daunting?

It’s incredibly exciting and challenging. At the beginning there were four of us, and now we have over 25 employees. It’s fun, but it comes with its challenges.  There are specific responsibilities and expectations; my role involves compliance, procurement, developing policies for employees and making sure that we are operating consistent with applicable laws. Then there’s the policy and regulatory development and trying to fulfill our statutory responsibilities under Chapter 224.  I’m learning something new and challenging myself every day.

Could you speak more about who exactly comprise the HPC? Are there other attorneys, data analyst folks, policy people, etc.?

Right now, our Legal Division is three attorneys.  But we also have individuals using their legal expertise and other skills across the organization.  Across the HPC we have policy directors that are charged with different responsibilities.  There is a Market Performance team, a Care Delivery and Quality Improvement team, a System Performance and Strategic Investment team, a Cost Trends team, and a Data and Analysis team. We also have the Office of Patient Protection, as well as Operations/Administration and Finance.  The thing that’s unique about the HPC is our governance structure. Our staff reports to the Executive Director, who is hired by an 11-member unpaid board composed of public and private sector experts appointed by the State Auditor, the Attorney General and the Governor.

What are you looking forward to working on in your capacity at the HPC?

I think that Chapter 224 is a tremendous opportunity.  It is an experiment, which is really what I find exciting about health policy work in Massachusetts.  I’m looking forward to what we can accomplish with enhanced transparency and the rigor of our data analysis and examination in any number of ways — our annual cost trends hearings, our cost trend report as well the cost and market impact reports.

Is there anything you would like to add regarding your career, your experience at the HPC or your perspective on health law and policy today in the Commonwealth?

I feel like I have had some tremendous opportunities to work in this laboratory of Massachusetts and am thrilled to be able to continue to do that.

 

Julie Myers, Esq. is a legal analyst and mediator in the Health Care Division of the Massachusetts Office of the Attorney General where she currently focuses on the Office’s mental health parity initiatives and mediating consumer complaints. Julie is a recent graduate of Northeastern University School of Law and Tufts University School of Medicine earning her JD and Masters in Public Health.

Health Law Case Brief: In the Matter of C.B.

By: Sarah E. Lowdon

On March 11, 2013, the Massachusetts Appellate Division of the District Court vacated the commitment of C.B. to Bridgewater State Hospital (“BSH”), holding that he was not a “patient” who could be committed pursuant to G.L. c. 123, § 7.[1]

Prior to February 2012, C.B. had been found incompetent to stand trial on charges pending against him in the West Roxbury Division of the Boston Municipal Court Department.  Since that time, C.B. had been committed to BSH, pursuant to G.L. c. 123, § 16(c).[2]  On February 29, 2012, BSH petitioned the Brockton District Court for recommitment of C.B. under § 16(c), as his commitment order was expiring.  In accordance with the law, the district court began by determining whether C.B. was still incompetent to stand trial.  Finding that he was not, the district court ordered that C.B. be returned to the West Roxbury Division for trial.

Immediately thereafter, C.B. was retained at BSH for transportation to the West Roxbury Division the following day.  While C.B. was awaiting transfer at BSH, the medical director petitioned for C.B.’s recommitment, this time under G.L. c. § 7(b).[3]  When C.B. was taken to the West Roxbury Division the next day his charges were ultimately dismissed and the district court addressed the § 7(b) petition.  C.B. moved to dismiss the petition, arguing that he was not a patient of BSH at the time of the petition.  Relying on the definition of “patient” in G.L. c. 123, § 1,[4] the court denied C.B.’s motion to dismiss and committed him to BSH for six months, pursuant to G.L. c. 123, § 8(b).[5]

Upon review, the Appellate Division considered the extraordinarily broad language of G.L. c. 123, § 1’s “patient” definition and noted that while C.B.—who, on February 29, had “a mental health professional-patient relationship” with “a number of mental health professionals,” including psychiatrists and licensed clinical social workers—could be considered a “patient,” so could almost “anyone who had ever been a patient at BSH.”[6] Accordingly, the court found room in the statute’s definition section to “interpret the statutorily defined terms in the context of a given case,”[7] and determined that even a frequent patient is not a patient between terms of commitment.  The court remarked that this is especially true when a patient’s commitment ends pursuant to a judicial determination that the patient is no longer incompetent to stand trial, and denies a § 16(b) recommitment petition for that reason.  Under this reading of the definition, C.B. could not be a recommitted as a current patient under §§ 7 and 8.[8]

Sarah E. Lowdon is a third-year at New England Law | Boston concentrating in healthcare law and is the Managing Business Editor of the New England Law Review.

 


[1] In the Matter of C.B., 2013 Mass.App.Div. 42 (2013).

[2] Section 16 allows for a person who has been found to be incompetent to stand trial or not guilty by reason of mental illness, or mental defect, in a criminal proceeding to be hospitalized. G.L. c. 123, § 16.

[3] Section 7 allows for the BSH medical director to petition for the hospitalization of an existing patient “when it is determined that the failure to hospitalize in strict security would create a likelihood of serious harm by reason of mental illness.” G.L. c. 123, § 7(b).

[4] Section 1 defines “patient” for all of chapter 123 as “any person with whom a licensed mental health professional has established a mental health professional-patient relationship.” G.L. c. 123, § 1.

[5] Section 8 outlines the procedural and evidentiary requirements for commitment. G.L. c. 123, § 8(b).

[6] C.B., Mass.App.Div. 42, at *2.

[7] Id. Section 1 states: “The following words as used in this section [and in the remaining sections of G.L. c. 123] shall, unless the context otherwise requires, have the following meanings: . . .” G.L. c. 123, § 1.

[8] The court noted that instead the proper course would have been for the BSH medical director to file for commitment under G.L. c. 123, § 12 for emergency restraint and hospitalization, which would provide the “mental health professional-patient relationship” predicate to then file for recommitment under §§ 7 and 8. C.B., Mass.App.Div. 42, at *2.

Health Law Case Brief: HipSaver, Inc. v. Kiel

By: Maggie Schmid, Esq.

HipSaver, Inc. (hereinafter referred to as “HipSaver” or the “Company”), a designer and manufacturer of its own brand of hip protectors, sued Douglas P. Kiel, M.D., an associate professor at Harvard Medical School, for commercial disparagement arising from the publication of an article in the Journal of the American Medical Association (“JAMA”).

Dr. Kiel, the article’s lead author, also conducted the clinical trial upon which the article was based. Citing the results of the clinical trial, Dr. Kiel’s JAMA article stated that “the clinical trial failed to demonstrate a protective effect of a hip protector on hip fracture incidence in nursing home residents despite high adherence,”[1] and concluded that the clinical trial “‘confirm[s] the growing body of evidence that hip protectors are not effective in nursing home populations’”[2] (collectively referred to as the “challenged statements”).

After the publication of the challenged statements, HipSaver filed a complaint in Superior Court alleging that Dr. Kiel had adversely impacted HipSaver’s ability to conduct business with its primary customer base: long-term care facilities and the U.S. Veterans Administration.  Specifically, HipSaver contended that: (1) Dr. Kiel knew or had reason to know that the hip protector tested in the study differed in design and was of inferior quality to HipSaver’s products, (2) persons likely to read and write about Dr. Kiel’s JAMA article would be unaware of the distinction and would be convinced to falsely believe all hip protectors to be ineffective, and (3) Dr. Kiel published the article with malice and reckless indifference to the fact that his conduct would injure HipSaver.[3]  Moreover, HipSaver claimed that it had suffered and would continue to suffer severe economic damages as a direct and foreseeable consequence of the article’s publication.[4]

Though Dr. Kiel’s motion to dismiss was denied, the Superior Court granted Dr. Kiel’s motion for summary judgment on the basis that HipSaver “had no reasonable expectation of proving [all of] the essential elements of its claim.”[5]  Subsequently, the Supreme Judicial Court (the “SJC” or the “Court”) granted HipSaver’s application for direct appellate review.

The SJC acknowledged the “scarcity of appellate decisions in [Massachusetts] analyzing a cause of action for commercial disparagement”[6] – the Court had previously never considered “special damages” in the context of a commercial disparagement claim[7] – and drafted its opinion with the objective of creating a complete analytical framework for the tort.  The SJC adopted the test set forth in the Restatement (Second) of Torts (the “Restatement”), and thus, in order to prevail on a claim alleging commercial disparagement, a plaintiff must prove that a defendant: (1) published a false statement to a person other than the plaintiff; (2) “of and concerning” the plaintiff’s products or services; (3) with knowledge of the statement’s falsity or with reckless disregard of its truth or falsity; (4) where pecuniary harm to the plaintiff’s interests was intended or foreseeable; and (5) such publication resulted in special damages in the form of pecuniary loss.[8]

Applying a de novo standard of review, the SJC considered the facts of the case in light of each of the Restatement’s elements of the test for commercial disparagement.  First, the Court considered HipSaver’s contention that the clinical trial’s conclusions (and by extension, the challenged statements) were false because aspects of the clinical trial’s methodology were flawed.  The Court disagreed, stating that “any purported design defects in the clinical trial were acknowledged by Dr. Kiel in the article, and did not necessarily render the challenged statements false.”[9]

Second, the Court addressed whether the challenged statements were “of and concerning” HipSaver.  Citing ELM Med. Lab., Inc. v. RKO Gen., Inc.[10], the SJC reiterated the Massachusetts test for whether an alleged defamatory statement is “of and concerning” the plaintiff: the plaintiff must prove either that the defendant intended the words to refer to the plaintiff and that they were so understood, or that persons could reasonably interpret the defendant’s words to refer to the plaintiff and that the defendant was negligent in publishing them in such a way that they could be so understood.[11]  Though HipSaver’s products were not used in the clinical trial, and though the Company was not mentioned specifically in Dr. Kiel’s article, HipSaver argued that, as the second largest hip protector manufacturer in the United States, the article could be understood as referring to the Company.  Again, the Court disagreed, stating that the article’s discussion of the “inefficacy of ‘hip protectors’ in general . . . was insufficient to give rise to a conclusion that Dr. Kiel was specifically discussing HipSaver’s product.”[12]

Third, the Court debunked HipSaver’s claim that “Dr. Kiel published the challenged statements with knowledge that they were false, or with reckless disregard for their truth or falsity.”[13]  The theory underlying the Company’s claim was that “because Dr. Kiel purportedly ignored or concealed evidence suggesting that the design of the clinical trial was flawed, he therefore published the challenged statement with reckless disregard for their truth or falsity.”[14]  HipSaver’s argument failed to persuade the Court; in addition to referencing the significant amount of scientific oversight that attended the clinical trial and the subsequent JAMA article, the Court also stated that “[t]he challenged statements in the article reflected Dr. Kiel’s interpretation of the accurately reported data . . . .”[15] and the fact “[t]hat concerns may have been raised about the chosen design does not mean that Dr. Kiel entertained serious doubts about the truth of the challenged statements as they were a reflection of the achieved results.”[16]

In regard to the fourth element of the Restatement’s test for commercial disparagement, the Court acknowledged that, based on Dr. Kiel’s correspondence, HipSaver had a reasonable expectation of proving that Dr. Kiel recognized, or should have recognized, that publication of the article was likely to result in pecuniary harm to the Company.[17]

Fifth and finally, the Court considered whether HipSaver had demonstrated that it sustained “special damages” as a result of Dr. Kiel’s publication of the challenged statements.[18]  To establish special damages in an action for commercial disparagement, “a plaintiff must show, where feasible, a specific loss of sales to identifiable customers.”[19]  The Restatement recognizes an exception to the general requirement that customers must be identifiable “where a false statement has been ‘widely disseminated’ and it would be impossible to identify particular customers . . . . ,”[20] and the SJC adopted the Restatement’s exception.  Nevertheless, the Court was not persuaded that the Company’s lost profits were a direct and immediate result of the article’s publication.[21]  The SJC noted that several other articles related to the inefficacy of hip protectors had been previously published, and highlighted the fact that HipSaver had not eliminated other possible causes for the Company’s pecuniary loss.[22]

Because HipSaver was unable to prove all the essential elements of the tort of commercial disparagement, the SJC affirmed the order of the Superior Court judge granting summary judgment to Dr. Kiel.[23]

 

Maggie Schmid, Esq. is an associate at Donoghue, Barrett, & Singal, P.C..  Prior to working for Donoghue, Barrett, & Singal, Ms. Schmid interned at Massachusetts Executive Office of Health and Human Services.  She also worked for the U.S. Department of Health and Human Services, Office of the General Counsel, Public Health Division during her third year of law school.  Ms. Schmid received her law degree from The Catholic University, Columbus School of Law in Washington, D.C., where she was a Note and Comment Editor on the Journal of Contemporary Health Law and Policy.  She received her undergraduate degree from Kenyon College.


[1] HipSaver, Inc. v. Kiel, 464 Mass. 517, 520 (2013).

[2] Id. at 518.

[3] Id. at 521.

[4] Id.

[5] Id. at 519.

[6] HipSaver, Inc. v. Kiel, 464 Mass. 517, 524 (2013).

[7] Id.at 535.

[8] Id. at 523-524 (citing Restatement (Second) of Torts, supra at § 651 (setting forth plaintiff’s burden of proof in action for injurious falsehood)).

[9] Id. at 524-525.

[10] 403 Mass. 779 (1989).

[11] HipSaver, 464 Mass. at 528 (citing ELM Med. Lab., Inc. v. RKO Gen., Inc., 403 Mass. 779, 785 (1989)).

[12] Id. at 529.

[13] Id. (citing Dulgarian v. Stone, 420 Mass. 843 (1995)).

[14] Id. at 532.

[15] Id. at 533.

[16] Id.

[17] Id. at 534-535.

[18] HipSaver, 464 Mass. at 535.

[19] Id. at 536 (citing Restatement (Second) of Torts § 633(2)(a) & Comment C).

[20] Id. at 537-538 (citing Restatement (Second) of Torts § 633(2)(b)).

[21] Id. at 540.

[22] Id. at 540-541.

[23] Id. at 541-542.

Health Law Case Brief: N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Insurance Company

By: Tucker W. Wade

On September 10, 2013, the Supreme Judicial Court of Massachusetts (the “Court”) affirmed a trial court’s decision to exclude statistical evidence offered by Liberty Mutual Insurance Company (“defendant”) contesting the reasonableness of high cost services provided by New England Physical Therapy Plus, Inc. (“plaintiff”) to a passenger of defendant’s insured.[1]  Under Massachusetts G.L. c. 233, § 79B, an exception to the hearsay rule, defendant sought to introduce geographical billing statistics from a third-party database marketed by Ingenix to support its refusal to reimburse plaintiff for the total amount of the chiropractic bills submitted.[2]  In excluding the database, the judge noted the defendant did not meet its burden of persuading the court of the admissibility of the evidence required under the exception.[3]  Section 79B has been interpreted to allow the admission of exhibits ordinarily excluded if the moving party persuades the trial court the exhibit is, at a minimum a) issued to the public, b) published for members of the relevant profession, and c) used and relied upon by such individuals.[4]  Defendant claimed the trial judge abused his discretion in denying the admission of the database as it fulfilled these three elements.

The Court considered whether the trial judge had the discretion to deliberate upon the reliability of the data offered by the defendant under §79B.  Even if the data satisfied all of the requirements set forth under §79B, the Court assessed whether the subsequent barring of the data amounted to an abuse of judicial discretion.[5]

The Court began its analysis by applying the abuse of discretion standard of review.[6]  In applying the standard, the Court looked for a decision which was arbitrary or capricious, noting it would not set aside the trial judge’s decision “simply because [it] might have reached a different result.”[7]

First, the Court found that if the defendant’s interpretation of the statute were accurate, the trial court would have contravened the legislative intent underlying the statute.[8]  The Court noted the language of the statute provides the trial court with discretion to determine the admissibility of evidence.[9]  The Court held the plain language of the statute controlled.[10]

Next, relying on precedent, the Court held the traditional role of the judge precludes the defendant’s interpretation of §79B, as the judge is the final arbiter on the admissibility of proposed exhibits.[11]  In dicta, the Court noted despite the statute’s requirement that “the offered publication be commonly used and relied upon…to ensure a certain level of reliability,” the trial court was not barred from addressing its own concerns on the reliability of the publication.[12]  The trial court concluded the database, while meeting the elements in §79B, was comprised of unverified, voluntary submissions of raw data provided by select insurance companies.[13]  Furthermore, Ingenix applies proprietary value and conversion factors to the volunteered submissions making extrapolations which cannot be verified as “accurately correspond[ing] with the actual charges for medical procedures.”[14]  The Court found the defendant’s interpretation of the statute led to an “absurd” distortion of the judge’s role, effectively hindering the court’s ability to exclude unreliable or weak data due to its reliance, no matter how pervasive, in a given profession.[15]

In light of its findings, the Court held the trial judge did not abuse his discretion in barring the admission of the database.

Tucker W. Wade is a J.D. student at Boston College Law School.  He is a graduate of College of the Holy Cross in Worcester, Mass.  He served as a summer intern in the Massachusetts Attorney General’s Office where he worked on subprime mortgage securities and false claims litigation.  Tucker is a native of southern California.


[1] N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 359 (2013).

[2] Mass. G.L. c.233, § 79B.

[3] N.E. Physical Therapy Plus, Inc. at 364.

[4] See id.  Mass. G.L. c.233, § 79B states that “Statements of facts of general interest to persons engaged in an occupation contained in a list, register, periodical, book or other compilation, issued to the public, shall, in the discretion of the court, if the court finds that the compilation is published for the use of persons engaged in that occupation and commonly is used and relied upon by them, be admissible in civil cases as evidence of the truth of any fact so stated.”

[5] Id. at 359.

[6] Id. at 363 (citing Commonwealth v. Polk, 462 Mass. 23, 32 (2013)).

[7] Id. (citing Cruz v. Commonwealth, 461 Mass. 664, 670 (2012), quoting Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641, 642 (1986)).

[8] Id. at 364 (quoting Mazzaro v. Paull, 372 Mass. 645, 653 (1977) (noting ultimate admissibility of exhibits under by §79B is entrusted to the trial judge)).

[9] See id.

[10] Id. at 364 (citing Commonwealth v. Jones, 417 Mass. 661, 664 (1994) (stating it is not the practice of the Court to tamper or deviate from the clear expression of legislative intent)).

[11] See id. at 364-65.

[12] Id. at 365.

[13] Id. at 361.

[14] Id. at 366.

[15] Id. at 364-65.

Health Law Case Brief: Alla Feygina v. Hallmark Health System, Inc., et al.

By: Kelly McGee, Esq.

 In Feygina v. Hallmark Health System, Inc., the Superior Court of Massachusetts granted the plantiff’s motion for summary judgment holding that a physician employee with a claim for unpaid wages was entitled to treble damages under the Massachusetts Wage Act, but not additional amounts for increased income tax liability or prejudgment interest.[1]  The Court ultimately determined that the liquidated damages mandated by the Wage Act are compensatory, not punitive, in nature, and that the treble damages ordered fully compensate the physician employee for all harm caused by the employer’s refusal to pay.[2]  In addition, the Court did not agree with the employer’s claim that it fell under the “hospital” exception to the Wage Act due to the employer’s affiliation with a hospital.[3]

Alla Feygina, M.D., was employed by Hallmark Health Medical Associates, Inc. (“HHMA”) and its predecessor from 1998 to December 31, 2010.  The parties entered into an employment agreement for the calendar year 2010 under which HHMA agreed to pay Dr. Feygina a base salary plus an incentive payment of 100% of excess revenue over expenses.[4]  HHMA paid Dr. Feygina the full amount of the base salary for 2010, but never paid the owed incentive compensation.  HHMA calculated the incentive compensation owed to Dr. Feygina and issued her a check for that amount minus deductions for taxes and other withholdings on September 23, 2011.[5]  HHMA indicated in language in the cover letter and on the check stub that the payment represented satisfaction of any and all incentive compensation HHMA owed Dr. Feygina.[6]

On September 28, 2011, Dr. Feygina’s attorney wrote to HHMA’s counsel seeking clarification as to whether HHMA intended to make the payment subject to the condition that she accept it as full and final payment.[7]  Dr. Feygina believed that the check did not represent the full amount owed her for incentive compensation in 2010, and HHMA later acknowledged receiving additional managed care payments for work performed by Dr. Feygina’s practice after sending the initial check.[8]  Dr. Feygina’s attorney made the same inquiry in subsequent letters on December 8, 2011 and September 10, 2012, but never received a response from HHMA.[9]

The Court stated that it was undisputed that HHMA had a contractual obligation to pay Dr. Feygina $255,755.82 in incentive compensation for 2010.[10]  HHMA asserted that it complied with part of its obligations by issuing a check in the amount of $167,399 to Dr. Feygina on September 23, 2011.  However, the Court held as a matter of law that “the tender of partial payment subject to the condition that it be accepted as a ‘full and final payment’…is not an effective tender.”[11]

Further, the incentive compensation owed to Dr. Feygina constituted “wages” under the Massachusetts Wage Act, and any damages paid to Dr. Feygina would be subject to the trebling provisions of the Wage Act.[12]  The parties agreed that Dr. Feygina would be paid according to the compensation plan in the employment agreement, which set forth both Dr. Feygina’s base salary and her incentive compensation.[13]  Thus both the base salary and the incentive compensation constituted “wages.”

HHMA contended that it should not be subject to the provisions of the Wage Act under the hospital exception, which states that the Act “shall not apply…to an employee of an incorporated hospital which provides treatment to patients free of charge, or which is conducted as a public charity….”[14]  The Court determined that although HHMA is affiliated with a hospital (Hallmark Health Systems, Inc.), HHMA is not an incorporated hospital and the exception does not apply.[15]

Finally, the Court held that while Dr. Feygina was entitled to treble damages as a matter of law, the treble damages in the Wage Act are compensatory in nature and “she is not entitled to recover any amount of consequential damages for increased federal income tax liability in addition to this amount.  That would give her an unfair windfall.”[16]  Although most statutes that give trial judges’ discretion to award double or treble damages are meant to be punitive in nature, the treble damages provided for in the Wage Act are intended to be compensatory.[17]  In 2008, the Massachusetts legislature amended § 150 of the Wage Act to specify that an award of mandatory treble damages will constitute “liquidated damages, for any lost wages and other benefits.”[18]  The Court determined that the addition of this phrase makes clear that the mandatory award of treble damages is compensatory, not punitive.  As the First Circuit held in Matamoros v. Starbucks Corp., the statutory liquidated damages are not punitive, but instead “constitute compensation for the retention of a workman’s pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages.”[19] Although HHMA’s breach resulted in a higher federal income tax liability for Dr. Feygina, the Court determined that the treble damages awarded to Dr. Feygina sufficiently compensated her for all direct damages, and she is not entitled to additional damages for increased tax liability or prejudgment interest.[20]  The Court did state, however, that Dr. Feygina may be entitled attorneys’ fees under the Wage Act and scheduled a hearing on Dr. Feygina’s request for attorneys’ fees, unless the parties reached a settlement prior to the hearing date.[21]

Kelly McGee, Esq. is an attorney in the Providence office of Donoghue, Barrett & Singal, P.C.  She is licensed to practice in Massachusetts, Rhode Island, and the District of Columbia, and is a Board member of the Rhode Island Women’s Bar Association.  Ms. McGee received her law degree from Boston College Law School.  She served as President of the law school’s Health Law Society and as the law school representative for the Health Law Section Steering Committee of the Boston Bar Association.


[1] 31 Mass. L. Rptr. No. 12, 279, 284-285 (August 5, 2013).

[2] Id. at 284.

[3] Id. at 282.

[4] Id. at 280.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 281.

[9] Id. at 280-81.

[10] Id.

[11] Id. at 281.

[12] Mass. Gen. Laws ch. 149, § 148.

[13] 31 Mass. L. Rptr. No. 12, 279, 282 (August 5, 2013).

[14] Mass. Gen. Laws ch. 149, § 148.

[15] 31 Mass. L. Rptr. No. 12, 279, 282 (August 5, 2013).

[16] Id. at 282-83.

[17] Id. (citing to Wiedmann v. Bradford Group, Inc., 444 Mass. 698, 710 (2009) and Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178 (2000)).

[18] Id.; see also Mass. Gen. Laws ch. 148 § 150.

[19] 699 F.3d 129, 140 (1st Cir. 2012).

[20] 31 Mass. L. Rptr. No. 12, 279, 284 (August 5, 2013).

[21] Id. at 285.

BIDMC and the Boston Marathon Bombings

By Jamie Katz, Sr. VP and General Counsel, BIDMC

The first bomb went off at 2:49 pm on April 15, 2013, the second about twelve seconds later. The BIDMC Emergency Department received notice of the bombings within two minutes and the first patient arrived eleven minutes later. Within a short time, more than fifty BIDMC clinicians and staff came back to the hospital voluntarily to help out in a variety of departments. The first BIDMC patient went into surgery within forty seven minutes of the initial blast. Of the twenty four patients that BIDMC treated that day, fourteen went through the Operating Room by the end of the evening. Ultimately sixteen patients citywide received amputations, some of them double.

BIDMC began implementing its Emergency Operations plan within minutes after getting word of the blasts. Emergency Department staff erected a decontamination tent for the first patient who arrived in case any hazards were detected and all of the victims coming into the hospital received Geiger counter scans—staff knew nothing about the nature and scope of the bombings, about the attackers, or whether additional attacks might occur.

Within fifteen minutes of getting word of the bombings, staff set up a command center to allow BIDMC personnel to communicate clearly and quickly with hospital staff, as well as with federal, state, and city agencies. The command center gave us a better understanding of what was happening outside the hospital walls while also making sure we could keep track of what was going on inside.

At the outset, our clinical leaders had a series of tasks. They had to figure out how to manage the ED patients who were already there when the bombing victims started to arrive. Each one of our physicians, trainees, nurses, and other staff had to receive appropriate instructions on their deployment in the most effective manner. Clinicians had to ensure that there were sufficient Operating Room capacity and staff to support the Emergency Department, ORs, critical care units and clinical support services. Most importantly, the clinicians had to evaluate, identify, and transport the most seriously injured victims to ORs or Intensive Care Units as quickly as possible.

The vast majority of the 264 victims transported to hospitals that day went to the six Boston-area Level I Trauma centers. While three victims died at the scene of the bombing, remarkably, none of those who survived transport to hospitals did. In the end, while far too many were hurt far too badly, the situation could have resulted in much worse damage. Boston area hospitals, EMS, Public Health and law enforcement had practiced disaster drills so many people who responded were prepared for an emergency. Also, the bombs went off as shifts were changing in hospitals, meaning many people were still around to help. And ironically, the wars in Iraq and Afghanistan have yielded something positive back home—we know much better how to handle damage from bomb blasts.

Once the bombing victims became patients at BIDMC and other Boston area hospitals, all of the hospitals faced extraordinary circumstances and events. Many of the injuries, particularly the amputations, were complex and involved multiple system interventions within the patients. These were, after all, not planned and expected surgeries, but surgeries conducted on jagged open wounds, full of shrapnel, dirt and debris, and severely hemorrhaging, damaged limbs.

BIDMC caregivers also quickly recognized the deeper wounds that did not show on the surface. On the first night after the bombings, one of the surgeons in charge was rounding on the patients and stopped to talk with a young woman. He asked her how she was doing. “Okay here,” she said, pointing to her body. “Not so good here,” she said, pointing to her head. At first, he thought she was referring to a head wound. He quickly recognized, though, that she was referring to her own psychological state.

From that point on, our clinical leadership put a Mass Casualty service in place. Surgeons from different specialties joined with chaplains, social workers, physical therapists, occupational therapists, and psychiatric clinicians to see patients. These teams visited each patient daily to evaluate his or her condition and determine the next steps. This service follows them through their outpatient care.

Our clinicians worked hard to tend to the entire patient holistically and provide all of the dimensions of the care that our patients needed. For some patients, that meant shielding them from the large number of well-wishers that came to the hospital. A day or two after the bombings, Gov. Patrick came through the hospital in a welcome show of support for the victims and our caregivers. At the door to one of our patient’s room, the Governor appropriately asked one of our nurses if the patient in the room would be willing to talk with him. The nurse went in and talked to the patient, then came out and told the Governor that the patient would be happy to see him. As Gov. Patrick moved past, his entourage began to follow. The nurse put up her arms and said, “She said she’s willing to see the Governor.” The entourage stayed outside.

Even as our clinicians dealt with a surge in patients, our communications staff dealt with a flood of press inquiries and demands. We received well over a thousand inquiries from local newspapers to an Australian radio station, some seeking information and others seeking access to clinicians or victims. Our communications staff struggled to maintain control of the press—where individual reporters knew, or identified, BIDMC physicians, they contacted them directly, sometimes accomplishing an end-run around our communications staff. Once our Emergency Department chief appeared live on a 7 a.m. CBS news show, the requests for interviews escalated. This flood of press requests came in through phone calls, pagers, e-mail, text requests, and social media. Our communications department developed a triage system to handle the influx, but even that system did little to unburden our staff.

The press demands evolved and mutated daily. Some families had absolutely no interest in publicity and, over time, kept a tight cocoon around their loved ones in the hospital. Other individuals and families wanted different kinds of publicity, for different reasons. Those individuals and families worked with our communications staff in some instances, while others, worked with reporters they selected. They were, of course, perfectly within their rights to work with members of the press, but it made the work of our staff more complicated as they tried to sift through which patients wanted what, and how to keep appropriate information private.Reporters, of course, did not always follow the guidelines established for them. Some reporters got in and went from door to door or office to office, seeking people to talk to. One national network called to request access for a reporter to speak to victims in the hospital. Our communications people explained that no reporters were allowed to meet with victims yet. A short time after that, one of the network’s reporters was escorted out of the building after having gotten close to entering a victim’s room.

Meanwhile, well meaning movie stars, television celebrities, motivational speakers, politicians, and other dignitaries requested visits to the victims in the hospital. In almost all cases, those requests were turned down at the request of patients.

Beyond the traditional press, social media proved a significant benefit for BIDMC. We were able to use our website and Facebook pages to let patients know that the hospital was open amidst the difficulties following the bombings. We were able to tell people how to find out about appointments on Facebook, or to give warnings of parking problems or other issues on our website.

In the first few days after the bombings, BIDMC shared a common experience with other Boston hospitals as we all struggled to provide appropriate care to patients and families and to manage the press. On Thursday, April 18, however, BIDMC began a journey down a different path.

On that Thursday night, the first suspect, Tamarlan Tsarnaev, was transported to BIDMC where he was declared dead shortly after arriving. On Friday night, the second suspect, Dzohkar Tsarnaev, was brought to BIDMC following his capture. His arrival changed the landscape dramatically.

Immediately upon the Tsarnaev’s arrival, security concerns became paramount. Would anyone take action against the hospital while he was there, or try to get him out? For BIDMC, the questions were more complicated because we have two campuses. Tsarnaev was on the West Campus. If we moved most of our security to the West Campus, did we endanger the East? Meanwhile, we had the families of victims still in the hospital—we did not expect they would all be comfortable with the alleged bomber being treated at the hospital. Very quickly, BIDMC security personnel worked with the FBI, ATF, State Police, Boston Police, Watertown, and Transit Police to provide security at multiple sites. Happily, within a couple of days of Tsarnaev’s arrival, we determined we could loosen security at most sites, except for the building where he was treated.

The arrival of Tsarnaev also meant that some of the impacts we had seen earlier in the week became even more pronounced. The press demands went back up. And the full impact of social media quickly became obvious.
The press worked hard to get information not just about the victims from that point on, but about Tsarnaev. Our security personnel regularly cleared press photographers from the roofs of several parking garages, where photographers with telephoto lenses sought to get pictures of Tsarnaev while he lay in the hospital. And one newspaper offered a BIDMC employee $5,000 for a picture of Tsarnaev in the hospital.

Pictures, indeed, posed the first major test for me. By Saturday, April 20, when I went into the hospital, pictures of the two suspects in or around the hospital had started showing up on the Internet. Because the release of the photos represented potential breaches of privacy as well as violations of hospital policy, we had to try to track down the origin of the photos in the face of our enormous clinical and administrative demands.

The first photo that came to our attention was of the first suspect, Tamarlan Tsarnaev, after he had died in the hospital. It sped around the web and supposedly was put on the front page of a small newspaper. No major newspaper would run it, because it was never corroborated. The photo was taken in a room within the hospital—but one that, as soon as Tamarlan Tsarnaev was brought in, went under the full control of federal authorities. Federal agents and Boston Police were in the room and no hospital personnel were allowed in the room without express authorization. Given the characteristics of the photo and the picture it conveyed, it quickly became clear to both federal authorities and BIDMC leadership that the photo was taken on a cell phone by someone in law enforcement.
A second cell phone photo circulated on the web, but we quickly determined that it showed the second suspect, the younger Tsarnaev, in an ambulance. The photo may have exhibited bad taste and bad judgment, but the photo did not come from within BIDMC so we did not pursue the photographer.

The last photograph became the most problematic. It depicted the younger Tsarnaev within the hospital, after his surgeries on his first night in the hospital. Again, the photo’s resolution suggested it was a cell phone photo. In this case, both law enforcement and hospital personnel were present where the photo was taken, on and off for a period. The area was controlled by the federal agents but numerous BIDMC clinicians had come through the unit in the course of providing care to Tsarnaev. As a result, I interviewed those hospital personnel who had been involved when it appeared the photo was taken. Federal agents also conducted some inquiries. In the end, the federal authorities believed that the photo was taken by a hospital employee, and we believe it was taken by a member of law enforcement—in the end, we will never know whose phone it came from.

Just as the press and photos became more problematic, the impact of social media became far more profound. Once Tsarnaev was in the hospital, BIDMC staff could not release any information about him, including his medical condition, without consulting with federal officials. As we started receiving endless press and public inquiries about his status, we conferred with federal officials, and the FBI subsequently sent out tweets on the FBI/DOJ Twitter account that announced Tsarnaev’s medical condition.

Meanwhile, Facebook became a forum for some of our clinicians to vent. Upon Tsarnaev’s arrival in the ED at BIDMC, some of those treating him or in close proximity to him became quite unhappy about his presence. A number of clinicians made derogatory statements about the patient and BIDMC’s role in treating him, with some of their co-workers indicating “Likes” of those posts and other BIDMC readers becoming very unhappy, arguing that BIDMC caregivers had an obligation to treat all patients to the best of their ability. Certain managers brought Facebook posts to my attention, feeling strongly that the posts were disruptive to their unit and inappropriate for BIDMC employees. We did review a number of Facebook pages, but only for inappropriately revealed private information about Tsarnaev or other patients. While I and another lawyer reviewed some tasteless and offensive posts, as long as they consisted solely of opinions and did not inappropriately reveal private information, we took no action against the writers.

The most dramatic social media event occurred a few days after Tsarnaev came into the hospital. I received a call late one night—the BIDMC website had been flooded by messages about Tsarnaev. The messages, though, were most unexpected.

“God is with you Djokhar, we pray for you . . . We stand for Justice”

“Praying for Dzhokahar, like for my brother. Pliiz take care of him! Czhokhar, we all r with you. . . “

“If we write to him will you deliver the letters?”

“DZHOKHAR TSARNAEV IS INNOCENT, INNOCENT, INNOCENT!!!!!!! FREE DZHOHKHAR!!!!”

“dzhokar is innocent . . please take good care of him. He is a great man dzhokar we love you . . .”

“Sending all my love to Dzhokhar and his family.”

The sudden influx of supporting e-mails made it clear that there was a concerted effort to overwhelm our website with these messages. We had messages about the victims falling next to messages about freeing Tsarnaev. For the next few days, we had to regularly spend time and effort cleaning the site of similar messages. Ultimately a court, not BIDMC, will determine Tsarnaev’s guilt or innocence. As distasteful as some of the messages were, they certainly might fit somewhere in cyberspace—just not in an attack aimed at taking down our website or making it wholly offensive to many of our Facebook users, including employees and patients.

We are now six months past the bombings. We have tried to absorb some of the lessons from the experience. Preparation, training, and drilling to prepare for a disaster are critical. Making sure our leaders and teams communicate, and work smoothly together are also important—which also requires that people know, very quickly, what their roles are and will be. The importance of clear communications both internally and with outside agencies cannot be overstated. And neither can the risk from camera phones.

There is another cautionary note to add. The “Boston Strong” mantra certainly has a strong foundation based on how the first responders, healthcare providers, law enforcement community all reacted to the bombings, coupled with the enormous amount of public support the victims received. That phrase, however, while it fits what happened in the post-bombing period, should not mask some on-going difficulties.

In particular, we should not fool ourselves into believing that all is well for many of those most affected by the bombings. Some of our caregivers are still struggling. They lived through what was comparable to a war zone. Some of them still feel guilt, feeling they should have done more. Some of them are still haunted by the extent of the injuries and damage they saw. And some of them struggle with the care they provided for Dzohkar Tsarnaev, feeling they did the right thing professionally but fearing that many of their friends and neighbors would judge them harshly for doing what they did. And many of the victims, particularly those with amputations, still have long, difficult recovery periods ahead of them. Their worlds changed in an instant and they now face life with pain, difficulties, and sometimes financial burdens that they never imagined. Their medical care, while dramatically better than in times past, is still fragmented and some of them will bounce from doctor’s office to hospital to physical therapist to mental health provider, with no single entity providing care coordination. So while we can all use Boston Strong as a symbol of pride, the slogan should not become a burden or a standard that caregivers or victims feel they have to live up to.

Finally, I will leave you with one lasting image from last spring. On the Saturday just after Tsarnaev became a patient at BIDMC, I went to the hospital and walked to the building where he was being treated for a meeting. As I approached the building, I saw a group of eight or so people to my right who were entering an adjacent building. Something about the group seemed out of the ordinary, so I took a second, longer look. The group of men all wore red tee shirts that read Semper Fi Fund. Each one had lost a limb—some arms, some legs. They were all veterans of Iraq and Afghanistan, on their way to visit some of the victims in our hospital to support them and give them tangible evidence that a good life could follow even after an amputation.

With that image still fresh in my mind, I went through multiple gauntlets of security, up to the SICU where Tsarnaev was being treated. When I entered that area, a number of physicians and nurses huddled around him, talking and adjusting things on and around him. The clinicians treated him while they were surrounded by federal agents and police officers.

I was struck by the simultaneous presence, in our hospital, of men who fought and suffered grievous injuries from hostile soldiers and IEDs overseas in order to protect Americans from terrorist activities, as well as a suspected terrorist who was ultimately charged with inflicting similar damage on the victims in our hospital. And despite the enormity of the charges against Tsarnaev, and the carnage he may have participated in, our doctors and nurses did what they did best and what they were supposed to do—they treated him to the best of their ability, giving the same kind of care they would have given to anyone.

Boston, and too many people, lived through a wrenching, difficult, tragic event, but what our caregivers did during that time—for victims and the second suspect alike—spoke to our deep, enduring commitment to care for our patients first, whoever they are, wherever they come from. The emotions inspired by the Marathon bombings were undoubtedly powerful and complicated for many individuals. What BIDMC accomplished is not so complicated—we took care of people, very disparate people, with exemplary care under very difficult circumstances.

 

Jamie W. Katz is the General Counsel and a Senior Vice President for Beth Israel Deaconess Medical Center in Boston, Massachusetts.  He had previously served as the Interim Chief Compliance Officer and Deputy General Counsel at BIDMC.  Before joining BIDMC, Mr. Katz was the General Counsel for the Commonwealth Health Insurance Connector Authority between 2006 (the inception of the Connector Authority) and October, 2010.  In that role, Mr. Katz was the chief legal adviser to the Connector Authority, the first state entity dedicated to implementing healthcare reform.  Prior to joining the Connector, Mr. Katz served as the Chief of the Public Charities Division of the Attorney General’s Office.  Mr. Katz also served as an Assistant Attorney General in the Attorney General’s Administrative Law Division and as an enforcement attorney for the U.S. Environmental Protection Agency.  He also was an associate at Hale & Dorr and a founding partner of a small Boston law firm.  Mr. Katz has extensive healthcare, insurance, trial, and appellate experience, and he has acted as a mediator and arbitrator in numerous matters.  Mr. Katz has presented at numerous national and local conferences and seminars.  He graduated from Harvard College and the University of Virginia Law School.  He has written professional articles in the areas of healthcare, charities, environmental law, and disabilities law.  Mr. Katz is also the author of numerous non-fiction pieces published in newspapers and magazines as well as two novels published by major publishers, Dead Low Tide (finalist for a Shamus Best First Mystery award) and A Summer for Dying.