Khajavi v Feather River Anesthesia Medical Group (Quality of
California Court of Appeal,
In a case decided this month an anesthesia medical group terminated a
physician employee under an oral contract for a specified term prior to the end
of that term. This was due in part
to a dispute between the plaintiff anesthesiologist and an ophthalmologist whose
brother was head of the anesthesia group. The
disagreement occurred in the operating room over a quality of care issue.
The trial court ruled by a non suit for the group but the appeals court
overturned the trial court stating that it is against public policy to terminate
a physician in retaliation for the physicianís advocacy of medically
appropriate health care (Business and Professional Code section 2056).
The case returns to the trial court on the issue of wrongful discharge
and possible damages. The California Medical Association filed an Amicus brief
in support of Khajavi.
University Clinical Associates v. Intracoastal Health Systems (Med. Staff v
The hospital board did not confirm a physician elected as
chief of staff. The physician sued
for the position. The court ruled
for the physician and stated the board breached the covenant of good faith
inherent in the medical staff bylaws. The
non-confirmation was due to the physicianís current legal action against the
hospital on an unrelated matter and had no quality of care implications.
In the October 23 2000 Modern Healthcare a second case was
reported. The physicians at Exeter
Hospital in New Hampshire are suing their Board of Directors for removing their
Chief of Staff as a nonvoting member of the Board. The Chief of Staff believes that it is due to his
outspokenness on quality of care issues at the hospital.
A similar instance of the refusal to seat a Chief of
Staff happened years ago at Eisenhower Hospital in Palm Springs, California.
In that case the trial court ruled in favor of the Board since there was
nothing in the bylaws to prohibit them from arbitrarily and without explanation
not allow the elected Chief of Staff to be seated.
The Board after winning the lower court trial agreed to the seating of
the Chief of Staff. This caused
Medical Staffs to place a notation in their bylaws and rules and regulations
that required explanation for any Board action that went against the Medical
King v. George (Medical Records)
A woman involved in an auto accident was taken to a
hospital emergency department and given a blood alcohol examination.
The state subpoenaed the hospital medical records to charge the woman
with a DUI. The court stated that
the state could not use medical records in the control of a physician, hospital
or health care facility without the patientís consent in a criminal case due
to privacy rights under the Georgia Constitution.
Sabatier v. Barnes (Peer Review Records)
Court of Louisiana
The physician plaintiff was terminated from the staff of a
hospital and subpoenaed a non-party hospital for his own peer review records.
The federal court allowed the physician to obtain his records since there is no
federal law that prevents this disclosure.
In re Ching (Peer review Documents)
Texas Court of
A cardiac surgeon sought an order to obtain peer review
documents to help sue two hospitals for suspending his surgical privileges. The
trial court denied the physician. The
court of appeal reversed and stated the trial court should have conducted a
closed-door examination of the requested documents to determine their relevancy
prior to the decision.
Johnson v. Wiseman (Peer Review Records)
Penn. Trial Court
Plaintiff filed suit against the physician defendant for
negligent wrongful death of their stillborn child. About one month after the
death Wiseman and other physicians met to discuss the delivery.
While under oath, at deposition, Wiseman refused to answer any questions
about the meeting stating it was protected under the state peer review
protections laws. The plaintiffs
moved to compel Wiseman to answer the questions and the court agreed.
The court stated that the discussion was not protected since it was only
an ďad hocĒ committee of an ďad hocĒ group.
This is a good lesson for medical staffs if they wish to keep their peer
review protection status.
Tirado v Lehigh Valley Hospital (Peer Review Records)
Penn. Trial Court
Tirado filed a malpractice suit against the physician and
hospital for the death of their newborn child.
During the deposition of the defendant physician Tirado learned of the
existence of a document written by the physician within one week of the babyís
birth. The physician refused to
give a copy of the report to Tirado citing the peer protection statute.
The court sided with the plaintiff after a closed-door review of the
document. The court stated that the
report was all from the hospital medical records and therefore not shielded.
The court also ruled that once a document is used to refresh oneís
memory regarding an event it is no longer shielded from the other party.
The above two Pennsylvania cases
were decided by a lower court and as such may still be appealed and are not
Becker v. Humana Health Plan (Termination and the ADA)
The plan had many reports about one physician smelling of
alcohol while seeing patients. The
plan offered to continue the employment of the physician with monitoring and a
recovery program. The physician did
not respond to the offer and was terminated.
The physician filed a suit against the plan for wrongful termination due
to a violation of American with Disabilities Act (ADA).
The district court agreed with the plan since the physician was not a
qualified individual with a disability since she posed a threat to patient
safety. The Circuit Court stated
that the ADA allows for a policy prohibiting alcohol in the workplace and the
plan did have such a plan in place. Think of this decision in relation to your hospital.
Does your hospital have such a
Simmons v. Tuomey Regional Med. Center (Hospital liability for MD Acts)
The hospital contracted with a group of emergency
physicians to be independent contractor emergency room physicians. The E.D.
consent form also stated that the physicians were independent contractors as
were all the physicians in the hospital. A
patient sued the hospital for medical negligence by an E.D. physician.
The lower court and the state Supreme Court ruled that the hospital had a
non-delegable duty to its patients due to vicarious liability for its
independent contractors. This is especially true if the state has endorsed the concept
of apparent agency (holding one self out so a reasonable person would believe
the person is the hospitalís agent). This
duty would not extend to instances where physicians and patients agreed to meet
in the hospital E.D. but only to those times where a patient presented to the
hospital for treatment and receives treatment from a ďphysician who reasonably
appears to be a hospital employee.Ē Think
about how your hospital advertises itself to the public and would a reasonable
person possibly think the E.D. physician was a hospital employee.
a similar case recently decided in Texas (Garrett v McCuistion Community
Hospital) a court of appeals ruled that in a case against the hospital for a
radiologistís error, the hospital could not be held liable unless the hospital
informs the patient that the physician is a hospital employee. Isnít it interesting how two cases with the same basic issues are
decided differently in different jurisdictions?
U.S. Court Allows Jury Decision Ordering Loss of Medical License in Criminal
In a case involving the criminal
trial of a physician accused and convicted of significant unlawful distribution
of controlled substances the jury sentenced the physician to 42 months in
prison, a monetary fine and forfeiture of his medical license.
The legal question is whether a jury or only the State Medical Board has
the ability to remove a professionalís license.
including our 9th, have stated
that a federal court cannot revoke a state-issued license as part of a
criminal proceeding. This split of
decisions allowed the case to go before the United States Supreme Court who
refused to accept the case for hearing. Therefore,
the outcome currently depends upon which Circuit hears the case.
Harris v Novello (Loss of Medical License)
New York App.
Court October 19, 2000
A physician challenged the loss of license by the State
Medical Board. The Board found the
physician made false statements on hospital applications. The court did not agree with the physicianís allegation
that he could not understand the documents because he had a learning disability.
Moran v Rush Prudential HMO (Independent Review)
S. Court of Appeal (7th)
In Chicago the 7th
Circuit ruled that the state law requiring an HMO and the patient abide by and
have disputes decided by independent physicians.
The outside medical consultant agreed with the patient, but the HMO
refused to pay. The patient paid
the $95,000 and sued for reimbursement. The trial court ruled for the HMO but
the 7th Circuit Appeals Court stated that the ERISA laws do not
preempt here and the HMO agreed to state insurance regulations and therefore had
to abide by the HMO Act. This is the first case to look at the interaction between state HMO
rules, as is present in California, and federal ERISA rules.
This is currently the law in 38 states and is central to the
congressional hearings on managed care. The question is whether one can force
the HMO to abide by the arbiterís decision.
The above decision is diametrically opposed to one in Texas by the 5th
Circuit, which ruled earlier this year that the HMO does not have to agree with
an arbiterís decision. The court based itís ruling on ERISA preempting state
law. The insurers in Texas have continued to voluntarily participate in the
appeal process. The 7th Circuit stated that ERISA does not preempt
state law on this issue.
Steele v. Hamilton County Community Mental Health Board (Medication)
Supreme Court October 16,2000
The Supreme Court of Ohio ruled that antipsychotic
medication may be force fed to an unwilling patient. The patient was
involuntarily committed but was not a danger to himself or others.
The court ruled that the patient lacked the legal capacity to give or
withhold an informed consent regarding the medication.
The medicine was necessary for the patientís condition and there was no
less intrusive effective means.
DISCLAIMER: Although this article is updated periodically, it reflects the
author's point of view at the time of publication. Nothing in this article
constitutes legal advice. Readers should consult with their own legal counsel
before acting on any of the information presented.