August 1, 2006 Recent Legal News








Peer Review



California v Fitzgibbons

In a case that is potentially of major significance, Dr. Michael Fitzgibbons was charged with illegal possession of a hand gun.  The case is mysterious.  Dr. Fitzgibbons was just found victorious in the anti-SLAPP suit against his hospital, Western Medical in Santa Ana California.  Less than a month later someone anonymously calls the police and gives a description of Dr. Fitzgibbons car and states the doctor was wearing gloves and waving a pistol on the freeway.  Dr. Fitzgibbons was interviewed at the hospital and gave permission for the police to search his car as he has never owned a gun.  The police found the gloves and gun hidden in the car.  Dr. Fitzgibbons states he was on his cell phone during the time he was supposedly waving the gun.  This should be easy to check with cell phone records.  Could this be another O.J. case where if the glove don't fit you can not convict.  Maybe Johnnie Cochrine will come back from the grave and defend Dr. Fitzgibbons. I'm sure the hospital would never do such a thing as frame anyone, he says tongue in cheek.  The hospital has turned the event over to the medical executive committee for any action. According to a source, the DA has decided not to file any charges but the hospital attorney has suggested the MEC with an anesthesiologist that has a nice hospital contract as chief of staff to continue the investigation where there is nothing to investigate. Dr. Fitzgibbons will also be doing the investigating as to who is framing him.  IIHI, lend an ear.  

Louisiana v Pou

Dr. Anna Pou and two nurses Cheri Landry and Laura Bubo were arrested by Louisiana for second degree murder stemming from the deaths of four patients during the Katrina disaster.  There have been no allegations but the bodies of patients at the hospital were tested for lethal amounts of morphine and Versed.  The arrests have started a major backlash against the State since the healthcare workers stayed and helped the sick and the lawyers left.    It is interesting that the state AG, who made the arrests is running for reelection.  Could he be afraid of losing?  No, not in Louisiana.

US v Gleason

Dr. Peter Gleason, a psychiatrist, was arrested by the feds for giving talks for drug companies where he was promoting a drug for non FDA approved purposes.  He stated that Xyrem, a drug for narcolepsy may be prescribed for depression and pain relief.  Those two have not yet been FDA approved indications.  Dr. Gleason has been paid money to go around the company and give talks regarding this drug, last year over $100,000.  The real problem is Xyrem is a controlled substance since it has GHB, which is used for date rape.  This case will be watched closely, since it may stifle physicians giving talks and opinions regarding drugs.  Dr. Gleason has been charged with conspiracy with Jazz Pharmaceuticals to recommend the drug for dangerous usage.  The arrest only happened after Dr, Gleason refused to help federal prosecutors in a case against the manufacturer.  Dr. Gleason states the opinions expressed were his based on personal opinion.  He believes his opinions are protected by the 1st Amendment.  There is little question that what Dr. Gleason did was legal as companies can hire independent physicians to discuss he drugs and physicians are allowed to use FDA approved drugs for off label reasons.  The ACCME states that a speaking physician does not have to tell if a drug usage is on label or off label.  The drug is currently a Schedule III drug and does not need a special form to write the prescription.  The manufacturer is cutting him lose and cooperating with the feds on their own.  Dr. Gleason is being represented by a public defender because he doesn't have enough money of his own to hire a private attorney.           Top


Holland v Duke

Holland was one of the patients who were exposed to hydraulic fluid last year when Duke negligently used the fluid to wash instruments.  The law suit is to both Duke who used the fluid and the elevator company that put the fluid in the wrong containers.  Holland had back surgery followed by an infection and now complains of multiple ailments.  Duke will be added to other suits already filed against the elevator company.

Fabrizio v Provena Med Ctr.
Ill. App. Ct.

Fabrizio sued the hospital because they increased the malpractice requirements from $200,000 to $1 million.  The bylaws allowed the MEC and hospital to set the limits.  The two agreed but the medical staff voted down the MEC agreement.  What the medical staff did was not important since the bylaws only required the MEC and hospital to agree.  I would hope that the entire MEC was replaced by the medical staff.  

Grant v St. Mary's Hospital
Wisconsin To be Filed

A patient died after receiving IV epidural medication instead of penicillin.  The state has already censured the Madison, Wisconsin hospital and a law suit is sure to follow.  The hospital is now using color coding medications and is considering different types of infusion tubing.  The hospital is now doing medication bar coding and checking patient identification, neither of which was being done when the incident occurred. 

Doe v Doe
To Be Filed

The FDA has reported that a patient died on December 21, 2005, after receiving a blood platelet  transfusion contaminated with E. Coli.  This happened in the Community Blood Center in the Kansas City area. The blood bank found the problem and called the hospital but the blood had already been given.  The FDA stated the blood was a "contributing factor" in the death.  The FDA also chastised the blood bank for not following procedures and inadequate training. 

People v Jewish Hospital

About 75 people have filed malpractice suits against Jewish Hospital in Louisville in the past three years.  To date, 18 have been dismissed and none have gone to trial.  Several days ago about 70 people staged a protest outside the hospital stating the hospital had unsanitary conditions that caused MRSA infections.  The trials start in September.          Top 


US v Medtronic

Medtronic has agreed to pay $40 million in fines for illegal kickbacks to physicians.  These included lavish trips, sham royalty and consulting agreements.  All for using their spinal products.    

SEC v Endocare

Endocare agreed to pay $750,000 for allegations of security fraud.  They also signed an agreement with the Justice Department that they will cooperate with them and there will be no prosecution if any criminal charges. 

Class v Legacy Health

In a class action suit against Legacy Health of Portland, Oregon, the system has agreed to refund a 25% payment they have collected from all uninsured patients retroactively to 2001.  They will also put in a sliding scale payments for those uninsured in the future.  

Patients v CHW
Settlement Undone

A Superior Court judge tossed a settlement between patients in a class action and CHW.  The reason was a Hispanic advocacy group objected to the settlement stating that many uninsured patients would be excluded from reimbursement.  The case will go to trial in September. 

Rhode Island v Wayland

A surgical center has settled with the state that it did not provide enough charity care.  It will pay the state $100,000 in cash and donate the same amount to charities that provide care.  The surgical center is owned by HealthSouth.       Top


Wal Mart v Maryland
D Md

The federal court ruled that Maryland had violated ERISA by making a law that only applied to companies with over 10,000 employees ( Wal Mart).  The law would have stated that those large companies (Wal Mart) would be required to spend 8% of their payrolls on health insurance or pay the difference into a state Medicaid plan.  Hopefully, this will end the other union attacks on private enterprise. 

Sutter v Unite Health
Ca. Superior Ct.

Unions lose again.  In California a jury has found the Laundry workers union, Unite Health, defamed Sutter Health when they sent postcards to patients about the care at the hospitals.  This will cost the union $17.3 million. The Union postcards intimated that Sutter's laundry (partially non-union) did not ensure that clean linens are free of blood, feces, and harmful pathogens.

El-Attar v Tenet
Ca. Ct. App.

Dr. El-Attar was a cardiologist at Tenet hospital in LA and was on a month to month lease in the medical building co-owned by Tenet and another (HPMOB).  He was suspended from the hospital staff for problems with documentation treatment and conduct.  He was asked to vacate the office and refused.  HPMOB sued for unlawful detainer and evicted the doctor.  El Attar then sued Tenet and HPMOB for retaliatory eviction and against Tenet for retaliatory discharge.  The lower and the California Court of Appeal both tossed all the charges for the wrongful eviction.  The doctor had a month to month lease and could be removed at any time.  The charges against Tenet were dismissed after the physician put on his case at trial.           Top


Daily v Kaiser
Ca Ct App

In an unpublished opinion a social worker won $1 million for Kaiser's outlandish firing of her after she complained about legitimate problems with confidentiality.  Kaiser allowed children to use computers with confidential patient information on it.  The social worker was protected by the state whistleblower statute and there was a nexus between the whistleblowing and the employment action.  The social worker was fired three weeks after making the complaint and the hospital lied in her disciplinary notices.  The Kaiser supervisor also lied on the stand when she denied being aware of the plaintiff's contact with the DHS.

Sharp v Cleveland Clinic

Sharp, a nurse, was fired after allegedly being wrongfully accused of using drugs.  She was confined against her will at the hospital, humiliated and then fired from the ICU.  A drug test was done with permission and was negative.  The hospital fired her for poor job performance.  Her last contact with the "hospital" was when she received a bill for $974 for the drug test. There are times when the hospital managers are not the brightest bulbs.        Top


Southard v United Regional 
ND Texas

Plaintiff went to ED with chest pain.  He was there a total of 1 1/2 hour and had very few tests done.  He died soon after of a MI.  He sued and the hospital defended preliminarily on the basis of EMTALA is not a federal malpractice law.  They lost the motion due to the the patient being discharged prior to being stabilized.   

Garaffa v JFK Med Ctr
NJ Super. Ct.

The patient came in to the ED with an open fracture of the arm. He was seen by an Orthopod and splinted.  Several weeks later he needed surgery at the VA hospital where he was covered with insurance.  The patient sued the surgeon and hospital for malpractice and EMTALA violations.  His attorney can not be the brightest bulb since he did not use an expert for the malpractice case.  This tossed that portion of the case as this is a requirement unless it is common knowledge.  The treatment of an open fracture is not common knowledge.  There was also no EMTALA violation since the patient was seen and treated.  This attorney should go back to school.      Top


Northlake Med Ctr. v Queen
Ga. Ct. App

A patient sued a hospital in Georgia for malpractice.  The patient refused to sign a state mandated form that allowed the hospital access to the personal health information of the plaintiff.  The hospital moved for dismissal but lost.  The court sated that HIPAA overruled the state law since the state law didn't comply with the HIPAA rules.        Top

Peer Review

Tsadik v Beth Israel
NY Supreme Ct.

The employed physician was given a choice to resign or be fired.  He resigned and was reported to the Data Bank.  He objected to the report and sued for money damages only.  The hospital moved for dismissal as he did not complete all the administrative remedies.  The court stated that since he was not suing for returning to the staff but only money, he did not need to complete all the steps prior to filing suit. Another physician victory against the hospital and another hospital that needs a new lawyer. 

Kibler v Northern Inyo
Ca. Supreme Ct.

Dr. George Kibler was recommended to be summarily suspended by the hospital's peer review committee.  Dr. Kibler was accused of escalating unprofessional conduct including threats of physical violence and erratic behavior.  The hospital also sued Dr. Kibler for an injunction against workplace violence.  The suits were settled and Kibler was reinstated and ordered to take anger management classes.  The settlement also released the hospital for all liability arising from the suspension.  Kibler then sued the hospital for defamation, abuse of process and interference with the practice of medicine.  The hospital defended with an anti-SLAPP action to prevent Dr. Kibler from harassing them.  The Supreme Court stated that peer review is a government activity and is covered under the anti-SLAPP suit California law.  The case by Dr. Kibler against the hospital was dismissed.

Zheng v Quest Labs

Dr. Zheng and Quest were sued for a misreading of a dermpathology slide.  This caused a review of Dr. Zheng's work.  The Lab reviewed almost 20,000 cases and found his work unacceptable.  He was released and reported to the NPDB.  Dr. Zheng sued for false light but forgot to state that anything was not true, a basic requirement.  This may be a case for a specialist in legal malpractice.     Top


Virginia v Cherrix
Vir. Superior Ct.

Abraham Cherrix, a 16 year old with Hodgkin's Disease, has had one round of chemotherapy.  He felt another round would kill him and the parents decided on alternative diet therapy from Mexico.  The Court appointed a co-guardian for the boy, and then hear arguments on the case.  The court ruled the boy must continue his chemotherapy.  The parents plan to appeal and in the process lose valuable time for their son.  The parents appeal worked and a trial will be held in September.  No chemo until after the trial.      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.