April 15, 2010 Recent Legal News



Peer Review







Kaufman v Franz
ED Penn

This is really a combination med mal and EMTALA case.  The patient went to the ED for "anxiety" and was seen by a hospital employee.  He was given Ativan and died six hours later from a MI.  Since he apparently told the mental health worker he had chest pains make this not a proper case for summary judgment for the hospital on the EMTALA claim.    

Duque v Nebraska Medical Ctr
Not to Be Filed

The Duque's baby died from an overdose of Heparin used to keep an access port open.  The baby was on dialysis.  This is not an uncommon problem with babies and heparin and others have died or become very ill from Heparin overdoses.  This includes the famous case of the Quaid twins getting an overdose of Heparin at Cedars Sinai in LA.  The parents are not suing the hospital as they received an explanation, an apology and have been told how the problem will be corrected so it does not happen to others.   

Patient v Mass General
To Be Filed

 A patient died at Mass General because the nurses did not pay attention to either the auditory beeps or the paper warnings.  They had been desensitized to both.  To make matters worse someone had the night prior turned off the critical beep on the machines monitoring the patient. What this says is that hospitals have too many machines making too much noise and nurses no longer hear them or pay attention to them since it is merely background.  The nurses are no longer at the bedside either since they are charting in the EMR.

Pugh v Doctors Hospital

Pugh went to the hospital ED complaining of lower extremity pain and demanding methadone.  After being told methadone was not available he removed his EKG electrodes and left AMA.  He returned less than a hour later and the physician refused to treat him.  He went to a nearby hospital where a CT showed a cerebral bleed.  The patient sued the hospital and physician no multiple claims including EMTALA and intentional infliction of emotional distress.  The claims were all removed on summary judgment except intentional infliction of emotional distress.  The patient did not prove the EMTALA violation caused his injury.  

Gilbert v Miodovnik

Gilbert went to a clinic for her pregnancy.  She had a two prior C-Sections and the mid wife recommended that she have another.  The patient wanted a VBAC.  The OB reviewed the chart and asked the midwife to again tell the patient about the dangers of a VBAC.  The midwife meant to do this but didn't.  The patient had a ruptured uterus and the child had brain damage.  The suit was against the OB for not stepping in.  The court rightly ruled for the OB stating that he had no duty to intervene as he had no formal relationship with the patient.  The court also rightly stated that if they imposed liability against the physician it would chill any consultations.  

Rivas v Children's Hospital of LA
Ca Sup Ct

 In an informed consent case, Rivas, a premie, was six months old and had a double hernia.  The hospital called the father, a Spanish speaker, a via a Spanish speaking social worker told the father the son needed a small operation.  The surgery was minor he was told.  According to the father he refused the surgery and the hospital operated the next day.  The problem is there is no record of the father's consent in the record. This was in a state report that was excluded from evidence. There was a note in the chart that the surgery scheduled for the morning would be postponed due to lack of consent.  The physician that morning talked to the father and the father refused surgery.  The hospital states that the father consented in English during the phone call but the hospital failed to provide a Spanish interpreter.  The hospital states he was offered one but refused.  The baby became vent dependent and has brain damage.  The hospital says it is from the premature birth.   The jury came in with a verdict for the hospital.       Top


US v Lopez
US Supreme Court

The Houston Chronicle has a story about the above 1992 case that involved a teen bringing a gun to school against a US law that banned guns within a certain distance from schools.  The court stated that the law was unconstitutional since it did not involve interstate commerce.  This is akin to the rule of Congress to make all take healthcare insurance.  At least that is the thinking of those challenging the latest law.  However, the court has changed since the Rehnquist Court made the original ruling but the ideologies of the Justices have not changed.  

Insurers v Massachusetts
Superior Ct.

To no one's surprise the judge ruled that he does not have jurisdiction as yet.  The insurers have not exhausted their administrative remedies.  The insurers can not increase their rates until they finish administrative remedies and then sue the state.  Following the verdict the state ordered the insurers to list their prices or pay a huge fine.  It is doubtful that the state has made friends of the insurers, some of which may leave the state.       Top

Peer Review

Shahinian v Cedars Sinai

Dr. Hrayr Shahinian, a minimally invasive brain surgeon, sued Cedars Sinai Hospital in Los Angeles after they forced him out by restricting his ability to perform surgery.  Preceding this there was a law suit against the hospital because they did not provide suitable backup equipment for a case performed by the physician.  There was a settlement by the hospital to the patient on this case.  The physician had emails showing that for years he and the OR staff had asked for more redundant tools.  This was ignored by the hospital and patient safety was compromised.  The physician stated that hospital sterilization was also below par with brain matter still on "sterilized" instruments.  The hospital denied the charge.  There is another problem and that is professional jealousy.  Dr. Shahinian is a board certified general surgeon and not a neurosurgeon.  The neurosurgeons did not take to him.  In 2003, he refused a contract and lost his research, teaching and administrative duties but retained his privileges.  In 2005 the hospital told him he had to supply and maintain custom instruments himself and be in charge of his own sterilizations. He also could not use certain instruments.  The hospital never peer reviewed the surgeon so there are no HCQIA protections.  The arbitrator awarded the physician a total of $4.7 million including $2.6 million in punitive damages.  He now practices at a community hospital.  Cedars is planning to appeal the arbitrator's decision. Cedars is the same hospital that screwed up the heparin dosages on the Quaid twins and had the wrong radiation doses on CT scans.   

However there are two sides to every story.  Dr. Shahinian was also just found guilty of medical malpractice and lost a $800,000 med mal suit. He was not at Cedars when the surgery was performed.  The judge raked the physician for not only doing inappropriate surgery but then committing fraud by altering a pathology report to cover up his mistake.  The award included $100,000 in punitive damages for the fraud.  The physician has a huge ego as he contends that the 17 med mal suits against him were all sent to attorneys by his competitors.  

Sadow v Lawnwood Med Ctr.
Fla Dist Ct App

In a bad week for hospitals Sadow is a cardiovascular surgeon who was repeatedly refused privileges by the hospital board in spite of positive recommendations by the medical staff on all levels.  The Board then made a resolution not to allow more applications by the surgeon.  The CEO then went to the MEC and asked them not to allow the next application per the Board's resolution.  The physician rightly sued and the hospital rightly lost.  The hospital attempted to invoke immunity but lost since the physician was smarter than the hospital and sued on a violation of the bylaws the hospital had given exclusive privileges to another cardiovascular surgeon.  The bylaws did not allow this.  The physician also proved the board's refusal to accept the medical staff recommendation was not supported by any adequate reason.  He not only won on the underlying claim but also won $5 million for punitive damages for slander per se.  The court ruled the amount was not excessive.  This hospital has been in the news in the past and almost always lost.    Top


US v Cole

Fred Cole of Houston, Texas, has been found guilty of Medicare fraud for illegal claims for incontinence supplies.  He will be sentenced in August and may get a fine of $250,000 and ten years in the pokey.

US v Carlisle HMA
To Trial

 The federal judge ruled a whistleblower suit against Carlisle HMA should go to trial.  The whistleblower said the company had falsely certified that their claims complied with Stark and AKS.  The organization had an illegal dealing with Blue Mountain Anesthesia Associations by giving them an exclusive contract and not charging them rent for the space and equipment nor any fee for the use of the hospital personnel.  The anesthesia physicians referred patients to the hospital for testing.  The court stated that there were  enough facts at issue to try the case and not have a summary judgment.       Top


Mercatus Group v Lake Forest Hosp
ND Ill

Mercatus wanted to open up a non hospital radiology shop and physician building in the city.  The hospital in this small town lobbied the council to not give permission.  The council obeyed the large city employer.  Mercatus sued and lost in summary judgment. The hospital has a right to lobby and did not give rise to the anticompetitive activity charged.  Since the group lost on federal grounds the court did not exercise judgment over state complaints.        Top


Patients v John Muir Health
To Be Filed

John Muir Health in Walnut Creek, California, has notified about 5400 patients of a breach of security.  Two laptops with patient identification were stolen two months prior from the Perinatal office.  Following the breach the local police were notified as was the HHS.  The hospital has paid for one year of fraud protection.  The hospital is now encrypting all information on all laptops in the system.  The above was a report in the San Francisco Business Times.   

Patients v BCBS Tennessee
To Be Filed

It is hard to believe that Blue Cross of Tennessee has put a million people at risk.  There was a theft of 57 hard drives from a training facility last fall.  Letters are slowly going out to all affected.  They have been offered free credit monitoring.       Top 


Rednam v State Board Missouri
Mo Ct App

Dr. Rednam, an ophthalmologist, tad his license removed for "obstructing a health care criminal investigation".  He was not allowed to re-apply for seven years.  He sued and the circuit court agreed with the physician that the board did not sufficiently explain its rationale.  The Court of Appeals overruled the circuit court and stated the case needed to go back to the board to articulate why they put the time frame on the physician.        Top


IRS v Mission Primary Care
5th Cir

In a fit of stupidity, Mission Primary Care did not honor an IRS notice to withhold payments to Dr. Mark Stanley.  Dr. Stanley owed over $300,000 to the IRS.  The IRS liened Mission Primary Care the collector of bills and payor to withhold payments.  They did not and paid out over $42,000 to Stanley.  Mission now owes that $42,000 plus interest and costs.  This must come from either the overhead of Mission or the payments to the other physicians.          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.