Defending Doctors, Lawyers, and Institutions: Meet Jim Malone
James L. Malone 70, of Reminger Attorneys of Law, is a man of many accomplishments: he’s an emeritus member of the Management Committee of Reminger Co., L.P.A. and past vice chair of the Medical Liability Practice Group. Since joining the firm in 1973, he has served as first chair counsel for more than 100 medical malpractice jury trials in the courts of northeast Ohio. His awards represent the finest honors that lawyers can achieve: invited member of the American Board of Trial Advocates, invited member of the International Association of Defense Counsel, member of the Defense Research Institute, member of the Ohio State Bar Association, listed in the “Best Lawyers in America”, listed as one of the “Ohio Super Lawyers,” former director of the Northeast Ohio Community Health Plan, former trustee of Hillcrest and Huron Hospitals, and former faculty member of Case Western Reserve School of Dentistry.
Even with all these honors, if you ask Jim Malone what he is proudest of, he says simply, “my three children and my wife, and the fact that I’ve been married to the same woman for 42 years. My family truly understands what it means to be ‘in trial’: birthdays missed, trips cancelled at the last minute.”
Being a lawyer specializing in institutional defense and defending doctors and lawyers is an important, demanding job, and his Malone’s family played an important role in his career.
One of Malone’s family members fashioned his own career in a similar vein, you might say. His son also received his undergraduate degree from the University of Notre Dame and then went on to the University of Cincinnati for his professional degree, as his father did. However, his son chose the College of Medicine where Jim chose the College of Law, both serving the field of healthcare in different ways.
Taking a Deep Look at the Impact of HIPAA
In 2002 Malone served as lead counsel in a trial that resulted in what the National Law Journal deemed to be “the most significant defense verdict of the year.” A key point in that case focused on sharing information.
Information, especially in the form of chart documentation, has become an important challenge to both practitioners of law and medicine. In fact, it was a major impetus behind the 1996 Health Insurance Portability and Accountability Act (HIPAA).
“In Ohio, we have always adhered to strict confidentiality provisions,” Malone says. “When a person files a lawsuit, he waives those provisions.” However, Malone notes, when it comes to shipping health records, not even the attorneys within his own firm agree. Moving electronic records increases the risk of exposure exponentially over moving paper records.
However, electronic medical records have many advantages in that they are rapidly accessed by care providers, can be accessed by people in different locations, and can be accessed by multiple people simultaneously.
“And that’s a good thing,” says Malone. “But it’s extremely challenging.”
A Paper Trail is Key in the Court Room
Documenting a medical intervention electronically presents problems if something goes wrong and a lawsuit ensues.
“The operating room operates on a now basis,” Malone says. But in the court room, speed is not the top priority: the paper trail is more important. “The computerized chart is hard to re-create.” When something fails, it is usually not because of an isolated event but rather a sequence of events. We need to know when they intervened and what else was going on at the time.”
He points out, somewhat tongue in cheek, that the newest lawyers in his firm are becoming computer experts.
Another impetus behind HIPAA was to ensure that people could maintain insurance coverage when changing jobs, especially for pre-existing conditions. This has been the case since 1996 because of HIPAA, not because of the Patient Protection and Affordable Care Act of 2010.
That act was recently under the scrutiny of the Supreme Court, which released its ruling on June 28, 2012, in a 65-page ruling on the 2,700-page piece of legislation. In a 5‒4 decision, the court ruled that the act was constitutional and did not exceed Congress’ scope of powers.
At the time of this interview, Jim Malone had not yet read the ruling, but he has an insider’s perspective of what it might mean. Still, he says, “I do not know exactly what it’s going to do — I doubt most people do.”
He points out that where people say the law will minimize the number of people who are uninsured, it really means minimizing the number of people who don’t pay.
“It’s not minimizing people who don’t receive care,” he says. “The hospitals will still treat you; they just don’t get reimbursed.”
Malone says that the hospitals will be able to reduce unpaid care, so that eventually it will improve the community.
“I believe it’s not an issue of health care but an issue of payment,” he says.
He does feel that many people are expressing opinions — on both sides — who have probably not even read the original act. “The statute itself is more than 2,000 pages. Who has actually read it? I doubt many have.”
In the end, he says, “I don’t see us turning into Canada with socialistic medicine, waiting six weeks for a kidney or dying while waiting for one.”