A Conn. urologist has pled guilty to illegal kickbacks by receiving free Lupron from TAP to switch patients from Zoledex. The urologist would then give patients the Lupron and charge the patient the standard price even though the physician obtained the drug for free. The urologist faces 5 years in prison and a $250,000 fine.
A fourth physician has just been charged in the Luprongate. This is a urologist from Lewistown . Maine. He joins the ones from Conn. and Indiana. Tap Pharmaceuticals has not been charged as yet. Top
An Oklahoma hospital and the emergency room physician were sued by a patient for medical malpractice. The suit against the physician was dropped and the hospital settled for $3 million. the hospital then sued the physician for his part in the action, even though he had been dropped from the suit. With friends like this....... Top
In a San Bernadino California settlement, as the jury in the case was deliberating, the physician agreed to a $1 million and the hospital a $100,000 payment to the plaintiff. The facts are about a 3 month old child hospitalized for possible sepsis. The grandmother told the doctor the infant's mother was a drug user and was worried about a small bruise on the child. She requested the doctor not release the child back to the care of the mother. The doctor referred the matter to the hospital Social Service Dept. and later discharged the baby to home as medically stable. Six days later the grandmother visited the child and found no supervision and a baby with a swollen head. The child was found to have bilateral subdurals and bilateral skull fractures. These were treated by drainage and the placement of a permanent shunt. The baby is disabled with severe vision defects. The main aspects was the failure of the doctor to report the potential abuse to the Child Protective Services as no written report was filed by either the doctor or the hospital. Also after being notified by the grandmother no w/u for battered baby was instituted.
Fuller v Tucker
A California Court of Appeal ruled that a patient injured while under anesthesia without knowledge as to the wrongdoer could add the name of the tortfeaser to a Doe complaint after the Statute of Limitations had expired. The facts the patient knew at the time of the original filing of the complaint were controlling as to whether or not the plaintiff could add another to the complaint at the later date. The fact that the patient had the means to find the truth at the original time was irrelevant.
Non-economic Malpractice Caps Constitutional
Guzman v St. Francis Hosp.
Wisconsin has a cap on non-economic damages in medical malpractice cases of $350,000 and a framework for determining comparative negligence. Guzan was injured in treatment for a fractured spine and became a quadriplegic. The trial court held the cap unconstitutional. The Appeals Court overturned stating it is constitutional to cap the damages tossing out all the usual pleas for relief.
A Texas jury has found against American Home Products (AHP) in a "fen-phen" case with a heart valve problem. AHP has had reached a national settlement with patients but some like this one opted out of the class action. The jury awarded $ 56.5 million in damages including a significant amount in punitive damage. AHP will appeal after the judge reduces the judgment to fit into the Texas cap on punitives. Top
Davis v Davis Wright Tremaine, LLP
Dr. Davis hired DWT to represent him in the purchase of a medical practice and option to purchase the medical building. The seller was under investigation by the state when negotiations were ongoing and eventually lost his license. There was also a cloud on the title of the building. DWT was sued for lack of due diligence in not finding any of these issues. The legal malpractice claim was tossed not on its merits but on a statute of limitations issue and the letter of engagement never stated anything about due diligence. The court then remanded for trial the issue of not doing a title search. Top
The Alabama Supreme Court has stated that a physician who visited a patient socially only in the ED may be sued for wrongful death. Originally, the under courts granted summary judgment to the physician. The Supreme Court did not agree because there was a question as to whether or not the patient had called the physician's office and was told to meet the physician in the ED. The case now goes back to the trial court for trial on the issue. Top
The 11th Circuit ruled that the stabilization requirement under EMTALA arises when it is determined the patient has an emergency medical condition and not just for transfer. The patient arrived in the ED with an emergency medical condition. The doctor on call requested a VQ Scan to R/O a pulmonary embolus prior to admitting her to the ICU. The hospital ran out of the isotope and the patient was in the ED for 7 hours. She died the next day. An EMTALA claim was made for lack of appropriate screening and lack of stabilization. The Court dismissed the MSE claim but allowed the case to go forward on the stabilization issue. The Court again stated that EMTALA is not a federal malpractice law. Interesting the Court also allowed a discrimination suit against the hospital to go forward since the patient was a member of a racial minority, that the defendant intended to discriminate based on race and the discrimination concerned an alleged contractual obligation.
Phillips v Hillcrest Med. Ctr.
In another EMTALA private case, a hospital was accused by a patient's family of violating EMTALA by asking during registration about insurance. The patient replied he had none and his folder was marked "uninsured". He was placed in the "minor" side of the ED examined and discharged on antibiotics with a diagnosis of pneumonia. He died one day later of SBE. The hospital won in the district court and the court of appeal since they treated all patients alike and did not discriminate due to insurance. Top
Westbrook v Western Ohio Health Care Corp.
An Ohio Court of Appeals has upheld a ruling by physicians against an HMO for refusing to return fees held in a contingency reserve fund. This was a breach of contract and also decided that the provision in the contract that allowed the HMO to cancel the reserve account of any physician terminated without cause was an unenforceable provision. The Court stated the HMO owed $8 million in principal and $4 million in prejudgment interest.
Wagner v Magellan Health Services
After Wagner admitted a patient to a psychiatric hospital whose admission was later denied, Wagner appealed the denial to the HMO. The HMO then talked to the hospital and threatened to delist them due to Wagner. Wagner admitted others to the hospital and the hospital was informed the patients could be treated by anyone other than Wagner. Wagner sued under antitrust and RICO complaints. Both were dismissed by the court. The Court stated that "even if Magellan viewed Wagner as a bothersome fly that needed to be swatted down, there would be no viable suit since there was no attempt to obtain money of another through threats of force or fear". The Court went on to say that " Magellan behaved like a stereotypical HMO, with a beady eye on the bottom line and stony indifference to patient welfare,...the hard fact of the matter is that even if Magellan is a poster child for the social ills of HMOs, Wagner has not alleged any legal wrong done to him under a federal statute".
Wisholek v Douglas
Wisholek sued an HMO for vicarious liability of it's physician employees. The HMO argued that the NY law stating that the provision of health services, directly or indirectly, by an HMO is not considered the practice of medicine. The court ruled that while there may be some question whether the HMO may be liable for it's direct negligence, the HMO will be liable for the negligence of it's employees.
HMO "take it or Leave it" is the same as a Denial of Medical Benefits
Hyden v New Mexico Human Servs. Dept.
Hayden, a member of a Medicaid MCO has an unusual condition and requested to see a physician out-of-network. The MCO denied the request and stated she must see one of the in-network physicians who all use therapy that has been unsuccessful in the past. The patient requested a hearing on the matter. The hearing officer received written briefs from both sides and decided no full hearing is required. Hyden then appealed to the state court. The court ruled that the MCO was not a state entity and the patient was not entitled to a full hearing. The Court of Appeal overturned the trial court stating that a fair hearing is guaranteed by regulations that do not require a state actor. The court went on to say that a take-it-or-leave-it offer of treatment that is ineffective or harmful is equivalent to a denial of care. The Court said a hearing was necessary to determine if the MCO contracted with providers that had the qualifications to provide Hyden with appropriate therapy.
In Fort Worth, Texas the All Saints Health System has sued PacifiCare over late payments. This is the first hospital in Texas to do so. They have also sent letters to eight other MCOs threatening suit if their bills are not paid. Last year CHW in LA sued Blue Cross for late payments and in Florida Sarasota Memorial filed suit and dropped United Healthcare for downgrading claims and late payment. Top
Jeffery H. v Imai, Tadlock & Keeney
Jeffery was injured in an auto accident and sued the other driver. The other driver was represented in an arbitration hearing by the above law firm. The law firm requested and received from Kaiser the plaintiffs medical records including documents stating " Confidential: Do not copy Without Specific Authorized Consent". The attorneys knew they had received the information, a positive HIV report, in error but used it in the arbitration hearing. Since the HIV report had no bearing on the case Jeffery sued the attorneys under invasion of privacy and infliction of emotional distress. It is important that the litigation privilege did not apply in this case since the balancing of interests between the privilege and the constitutional privacy issue was won by privacy. The other causes of action were dismissed.
The Wall Street Journal reported about an HIV patient whose medical records were transferred from a small pharmacy to CVS when CVS bought the other pharmacy. This was done without the patient's consent. CVS states this is the industry standard. HIPAA will probably change the industry standard. Top
The patient tried to enter a White Castle restaurant and was stopped and restrained by a guard. The police were called and Threlkeld was arrested and taken to Jackson Park Hospital against her will. The patient was placed in a locked room and tied to the bed. The on-call doctor found the patient upset and crying but not a threat to herself or others. The doctor ordered, without the patient's consent, a sedative. The patient sued the hospital and the doctor. She won the right to sue under the Illinois Mental Health Act and medical malpractice. No idea why she was originally detained or what happened to the suit against White Castle. One needs to obtain consent. Top
Drs. Hill & Thomas Co. v Shaw
A large radiology group hired Dr. Shaw and as part of the contract had a non-compete clause barring employment within five miles of any H&T location. Dr. Shaw resigned and was to be hired by a competing group. The Court stated that homes with teleradiology equipment are classified as a H&T location and Shaw is barred from practicing within a five mile radius of her home for the term of the covenant. In California there is no covenant not to compete for employees and it is now questionable, as against public policy, even if a shareholder or partner. Top
Steinsmith v Medical Bd. of Cal.
Many states, including California, have a law stating that physicians may only work for physician owned entities and not non-medical entities. In this case Steinsmith worked for a clinic from 1993 to 1995 without any knowledge that the clinic was owned by unlicensed people. He was notified in 1995 of the situation but did not resign and continued working at the clinic. He was again notified in 1996 that the clinic was not owned by licensed practitioners. In 1997 the clinic was sold to licensed practitioners. Steinsmith was cited by the Board and fined $500. He appealed the fine and the matter went to an ALJ who ruled for the state. Steinsmith again appealed and a trial court ruled for Steinsmith. The board now appealed and the Court of Appeal ruled back for the state. Steinsmith's working at the clinic made him culpable since the clinic could not be operated without a licensed practitioner and therefore aided in the unlicensed practice of medicine. Think of the money spent for a principle, an attorney's dream. Top
Ayash v Boston Globe
Dr. Ayash was accused by the Globe of heading the team at Dana-Farber that gave the wrong dose of chemotherapy to a Globe reporter causing her death. After being let go from her position at Dana-Farber she sued the hospital for wrongful termination and the Globe and Globe reporter for libel, infliction of emotional distress and interfering with her business relationship. She attempted to obtain the name of the person who gave information to the paper but the paper refused to divulge it's sources. The judge has ruled against the paper on the charges but not on the source. The paper can now not defend itself but can only attempt to limit damages. Ayash will now attempt to use circumstantial evidence in her case against Dana-Farber. Top
Gonzalez v City of NY
The City of New York Fire Department made a rule that in order for hospitals to be eligible to accept 911 Fire Department cases their ED physicians had to be Board Certified. Several physicians who were not certified were fired by their employer hospitals and sued all concerned. The doctors lost on all issues except whether or not the NY Health & Hospital Corporation had a involvement in the physician's hospital termination. Top
Pappas v Asbel
Two case. Same basic facts. Different jurisdictions. Different
Results. The Penn. court ruled that ERISA does not pre-empt a
negligence claim when a member was delayed in transfer from a hospital ED to a
more appropriate facility due to asking for HMO approval for the transfer, an
EMTALA offense. The hospital was sued and filed a third party suit against
the HMO for refusal of allowing the transfer to a non-HMO facility. The state
suit was allowed to go forward since treatment decisions by an HMO via its agent
physicians are not fiduciary acts under ERISA.
Montgomery v South County Radiologists
In what appears to be a solution looking for a rationale, a malpractice action was filed against a radiologist for a missed diagnosis. The statute of limitations had passed. Missouri's exceptions to the statute are a foreign body, fraud, negligent failure to inform of an abnormal lab test and continuing care. The court here wanted to reach the radiologist and did so by stating the radiologist had a continuing duty to the patient since they are part of a team that continues the patient's care. This would also apply to pathologists. Top
Reed v Bojarski
The physician worked for a medical group that contracted with an employer to do pre-employment physicals. The physician do a physical and a chest x-ray. The x-ray was abnormal showing a possible lymphoma. The results were given to the physician who passed them on to the employer who sent a letter to the patient that all was normal. Later he developed Hodgkin's Disease and died at age 28. The question is does a physician-patient duty of care exist in third party exams. The courts are split in one set says that the physician only needs to prevent harm to the patient during the exam. Another school states there is a duty to the patient. These courts believe that the physician owes a direct duty to tell a patient about a previous undetected severe disease. California, in the infamous asbestos cases, felt the physician has a direct duty to tell the patient of something found. Most states either have or will go to the latter standard. Top
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.