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From Health Law Daily, February 1, 2017

President Trump nominates Tenth Circuit’s Gorsuch for High Court

By Bryant Storm, J.D.

President Donald Trump nominated Tenth Circuit Court of Appeals Judge, Neil Gorsuch, to serve, for life, as a U.S. Supreme Court Justice. Gorsuch, a relatively young Supreme Court nominee at 49-years-old, was appointed to his current seat on the federal appeals court in 2006 by President George W. Bush. During the nomination announcement, Trump said "Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline, and has earned bipartisan support." Top Democrat Sen. Chuck Schumer (NY) expressed doubt about the nominee, noting Gorsuch’s prior "hostility towards women’s rights," favoritism of corporations, and strong ideologies which Schumer described as inconsistent with "independent justice."

Prior decisions. In his seat on the Tenth Circuit, Gorsuch has participated in a number of health cases which may serve as some indication of his future views, should he be confirmed to fill the vacancy left by the death of conservative Justice Antonin Scalia.

In Hobby Lobby Stores, Inc. v Sebelius, with Gorsuch concurring, the Tenth Circuit held that the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) contraceptive mandate impermissibly infringed on the religious rights of business owners who refused, in Gorsuch’s words, "to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg." In his concurrence, Gorsuch wrote: "for some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability . . . Understanding that is the key to understanding this case" (see Tenth Circuit rules in favor of Hobby Lobby regarding HHS contraceptive mandate in employer provided health plans, June 28, 2013).

In an opinion authored by Gorsuch, the Tenth Circuit held in Caring Hearts Personal Home Services, Inc. v. Burwell that Caring Hearts Personal Home Services, Inc. was not responsible for failing to adhere to newer, stricter regulations governing whether patients are considered homebound and the level of documentation required to justify the provision of physical therapy services. Gorsuch wrote that CMS applied the wrong regulations and owed the provider $800,000. In dictum, talking about a percieved excess of regulations, policy manuals, and other regulatory actions, Gorsuch noted, "for some, all this delegated legislative activity by the executive branch raises interesting questions about the separation of powers" (see Provider not required to be psychic, adhere to future regulations, June 1, 2016).

In Caplinger v. Medtronic, Inc., Gorsuch authored a split decision in which the Tenth Circuit affirmed the Oklahoma district court’s dismissal of a state products liability action brought against Medtronic, Inc. for the off-label promotion of its Infuse® Bone Graft device. The court, led by Gorsuch, ruled in favor of the medical device manufacturer, noting that because the device passed the FDA’s stringent premarket approval process, any additional state requirements, imposed by the plaintiff’s state law claims, were additional rules on top of those imposed by Congress and, therefore, preempted by federal law (see Split decision saves Medtronic’s Infuse® from additional off-label claims, April 22, 2015).

In Genova v Banner Health, Gorsuch penned an opinion denying a doctor’s claims that he was retaliatied for complaining about hospital overcrowding or that the hospital violated the Emergency Medical Treatment and Active Labor Act (EMTALA). In the opening line of the opinion, Gorsuch wrote, "When holding a hammer, every problem can seem a nail." He then went on to hold that the physician was not terminated as a result of reporting overcrowded emergency room conditions. Instead, Gorsuch explained, EMTALA protects patients from being turned away, not the inverse (see Though ER doc’s heart was in the right place, he could not maintain his claims that he was discharged for complaining about overcrowding, August 21, 2013).

For a list of pending Health, Life Sciences, and Health Reform cases and petitions before the Supreme Court, see Health Law Daily’s Supreme Court Docket feature.

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