August 15, 2001

State Immunity

Fraud & Abuse

Florida Attorney General

Physician on Trial 

Right to Die

Peer Review

Punitive Damage Retrial

Physician Sued for Fraud


Hospital Lien

Malpractice & Experts

State Immunity

First Physicians, a medical group of Florida primary care physicians, is employed by a State Public Hospital Board Hospital, Sarasota Memorial.  The hospital has limited liability due to its state sovereignty and the physicians want the same.  Appellate Courts have held that physicians have immunity under state law if employed by the state.  If the physicians win their suit for declaratory relief their malpractice premiums would decrease since they would only need $100,000 protection instead of the current $500,000.                            Top

Fraud & Abuse

A federal judge has given his blessing on a settlement between HCA and the U.S. Justice Department for the fine of $745 million, the largest fine to date.  HCA had to pay the fine and interest within 5 days.  There are still more potential fines against HCA.  This is a whistle-blower action so one person will get $32 million and five others will split an additional $34.5 million.  

Catholic healthcare West has settled with the government for $10.7 million dollars a claim for fraudulent billing.  The government stated that the organization did surgery with experimental equipment not covered under Medicare.  This is the third settlement by CHW in the past several months.  This is another qui tam case and the whistle blower, a medical device salesman, gets $2.15 million.      

The University of Florida will pay $8.6 million for allegations that its employee physicians over billed Medicare.  The University did not have enough evidence that the physicians who billed actually did the work reported.  The University has also entered into a compliance integrity agreement with the feds.  This means the will be looking over the University's shoulder for the next few years.  This was also a whistle blower case but the whistle blower was a former UF ophthalmologist.   Top  

Florida Attorney General

The Florida Attorney General continues to scrutinize the two Palm Beach hospitals that were sold to Tenet.  He states the foundation board has $50 million and are not answering questions about their plans for the money nor what their expertise is in grant-making.  Top

Physician on Trial 

Dr. Robert Weitzel is on trial in Utah for the death of five patients.  The people died after receiving pain medication.  The first trial was won by the prosecution but was overturned due to prosecutional misconduct, withholding a name of an exculpatory witness. Apparently many calls and emails are going to the Attorney General from physicians around the country arguing that Weitzel should not be re-tried.  Weitzel, a psychiatrist, is scheduled to appear in Federal court to plead guilty of 2 counts of a 22-count indictment for prescription fraud.  The dead patients were in the Davis Hospital geriatric-psychiatric unit where Weitzel was the head physician.  Those physicians who have reviewed the records have stated that the patients were terminally ill and receiving comfort care.  The prosecutor states that none of the people had pain producing findings on autopsy.                        

People v Brown
Ca. Ct. App.

The Court affirmed a murder verdict against a person who was a physician and lost his license for disciplinary reasons.  The "doctor" amputated a man's leg for a phobia by the patient who wanted his leg amputated.  This is illegal in the US. The patient was sent to a hotel in San Diego to recoup after the surgery done in Mexico.  The patient went on to die of gangrene and no antibiotics were prescribed.  The Court upheld the conviction even though the crime (amputation) was not done in the State. The completion of the crime occurred in California.        Top

Right to Die

Wendland v Wendland
Ca. Supreme Court

The California Supreme Court in a 6-0 ruling that a family member must show by "clear and convincing" evidence that a person would have wanted the life support system removed.  This ruling is limited to those people who are conscious and have no advanced directive.  It specifically does not affect permanently unconscious individuals.                            Top

Peer Review

Cryer v Corbett
Alabama Supreme Court

The plaintiff asked for notes made by the defendant physician in preparation for a meeting with his group shareholders do discuss the alleged malpractice.  The plaintiff also wanted the notes from the meeting.  The Court allowed the discovery of these notes since a group of shareholders have no peer review function and they are not part of a medical staff as is required in the Alabama peer review law.

Marshall v Planz
M D Ala

A physician terminated from two medical staffs sued his own group and individual members of the group for defamation.  The members gave information to the hospital peer review committee and were not on the committee.  The Court ruled that peer review protection is to allow candor, which includes giving testimony before the committee.  These statements are therefore protected.        

Humana v Erdely
Fla. Dist Ct. of App.

Erdely sued her physician and Humana in state court for malpractice.  A discovery request was for the physician's application to Humana.  The trial court allowed discovery but the appeals court said it was protected under the Florida Peer Review Statute.  The application is part of the records of a peer review committee and is protected.

Gabaldoni v Washington Hosp Assn.
4th Circ

 Gabaldoni, an OB/GYN, had been on the staff of the hospital for many years.  On a re-appointment the Board refused to appoint him.  The hearing committee recommended Gabaldoni be conditionally re-appointed and a letter of censure placed in his file.  The board still refused to appoint due to an inordinate number of prior grievances and a pattern of failure to adhere to established and basic tenets of ethical and professional behavior.  Gabaldoni filed suit in Federal Court for the usual causes. The District Court granted summary judgment for the hospital under HCQIA.  The Court of appeal affirmed the District Court. The Court stated the Board had made a reasonable effort to gather all the facts of the case and gave due process.

Freilich v Board of Dir. 
D. Md

Dr. Freilich was denied reappointment at the hospital where she held privileges for 18 years.  She sued Harford Memorial hospital and those involved in her peer review in Federal Court.  She, of course, lost.  She even tried to sue the State and Federal HCQIA regulation, an interesting twist but one that was bound to lose. 

Fridano v Chuman
Ind. Ct. app

Fridano had significant back injuries.  He received chiropractic and other treatments prior to seeing Chuman.  While seeing Chuman he had further treatments and surgery by others.  Chuman did a laminectomy years later and afterwards, Fridano sued Chuman. At trial Fridano presented testimony from a Dr. Fischer.  On cross-examination Chuman asked if Fischer's staff privileges had ever been restricted or modified and Fischer said no.  Chuman then presented a letter stating Fischer's privileges were restricted and impeached Fischer.  Fridano argued the letter was part of peer review and therefore privileged.  The jury voted in favor of Chuman.  On appeal the Court stated that final action taken  by a peer review committee was outside the scope of the Indiana peer review privilege and thus discoverable.  The Court distinguished the actions of a peer review committee which is non-discoverable and the final action taken by the hospital as a result of peer review which is not privileged.  

Virmani v Novant Health
4th Circ

In a federal law suit alleging discrimination, the terminated plaintiff OB/GYN sought all peer review records related to all reviews of physicians for any reason for the past twenty years. The hospital fought the request and the trial court limited the request to 15 years.  The court of appeals allowed the full amount.  They do not recognize any peer review privilege in the federal system and the need for the records to prove discrimination outweighs the need to privilege.  Top

Punitive Damage Retrial

The judge in a law suit against Phillip Morris where the plaintiff had won $5 million in damages and $3 BILLION in punitive damages ordered either a retrial on the issue of punitives or a reduction to $100 million.                                    Top

Physician Sued for Fraud

A physician in southern California has been sued for fraud by two patients.  They claim the physician gave them saline intravenously but charged for anti-AIDS medication.  The physician denies the charge and states he did give vitamins when he could not procure the medications.  The physician is also being sued for wrongful termination by his medical assistant of 12 years who backs the patients.  The physician also was convicted in the past of prescribing anabolic steroids.                                    Top


Knorp v Albert
Kansas App. Court

A patient sued the physician and the hospital for medical malpractice.  The case was dismissed because the rules of notification under the Kansas malpractice law were ignored.  The patient then sued the physician individually as an independent contractor.  The rationale was that the contract stated the hospital would not control, direct or supervise the physician in his professional care of any individual patient.  The physician stated he was an employee and so could not be sued individually.  The Court ruled for the physician since the hospital made out the schedule, provided the facilities, the length of the contract and the inability of the physician to work anywhere else during the term of the contract.  The plaintiff still needs to file one more suit, against the attorney for legal malpractice.       

Shaboon v Duncan
5th Circ

Shaboon was terminated from her residency for psychiatric reasons.  She sued all and lost.  The issues raised were that those that served on the panel that terminated Shaboon were entitled to summary judgment.  They were sued for emotional distress and the Court stated that there was at most a propensity to terminate her residency unfairly which did not constitute a legally actionable emotional distress.   The Court also stated she received a due process hearing even though students with academic or disciplinary problems are not entitled to as much 14th Amendment due process rights as those employees who are terminated from their jobs.      

Pediatric Surgical Assoc., PC v IRS
Tax Court

The corporation is the only pediatric surgical business in the Fort Worth, Texas area.  There was a shareholder compensation agreement between the corporation and the shareholder surgeons. The corporation also had non-shareholder surgeons.  The corporation never paid dividends but did pay cash bonuses to the shareholder surgeons.  The corporation was assessed for deficiencies for the 1994 and 1995 tax years.  This was due to a disallowance of a portion of the compensation paid for services.  The Tax Court held that the deductions claimed by the corporation exceeded reasonable allowances for services rendered and therefore non-deductible.  This bonuses were actually disguised dividends since it included those profits attributable to the non-shareholder surgeons.  The corporation owed the back assessment plus interest and penalties for accuracy relation. Dividends are not deductible to the Corporation.      

Fox v General Motors Corp.
4th Circ.

Fox had worked many years at GM and then suffered a non-work related back injury.  He had many aggravations of the injury and missed a significant amount of work due to the injury.  He claimed he suffered humiliation from his supervisors due the back injury and sued for discrimination and subjecting him to a hostile work environment in violation of the 'ADA. The jury awarded him $200,000 in compensatory damages, $1,000 for medical expenses and $4,000 for lost overtime.  On appeal, the 4th Circ agreed that the ADA did create a cause of action for a hostile work environment.  GM did prevail for the $4,000 for unpaid overtime since there was no intentional denying of the overtime. 

Mountain States Neonatology v St. Luke's 
Dist. Idaho 

The court denied a temporary restraining order asked by the medical group against the hospital.  The group wanted to remain on the staff of the hospital after their exclusive contract was terminated.  They also wanted a "fair hearing" if they were to be removed from the staff.  The court went with the majority of jurisdictions that state no hearing is necessary when the termination is for administrative reasons.                              Top

Hospital Lien

Grauberger v St. Francis hospital
N D Cal.

A patient hospitalized after an auto accident had her hospital bill paid by her insurer to the maximum of her contract.  She then sued the driver of the other car and the hospital filed a lien against half of any settlement in order to be paid the full hospital bill.  The Court decided that the hospital could not do this when they had already been paid.  They stated the law was meant for those patients without insurance so the hospital would be paid for their services.                   

Parkview Hosp. v Roese
Ind. Ct App.

Roese was injured in a car accident and treated at Parkview. Roese was on Medicare at the time.  Parkview never billed Medicare and sought payment under a lien against any award won by Roese.  Allstate, the tortfeasor's insurance company, issued two checks to Roese.  The first was to Roese, her attorney, and Parkview for the amount of the lien. Roese filed a motion to quash the lien based on Parkview's failure to bill Medicare as required by Indiana Medical Lien Statute.  The trial court agreed with Roese and Parkview appealed.  The Court of Appeal reversed stating that the Medicare as Secondary Payor Rule pre-empted the Indiana Statute. HCFA had issued a letter that a provider must bill a liability insurer within 120 days unless the provider has evidence that the liability insurer will not pay within that period.  After the 120 day period has expired the provide may but is not required to bill Medicare for conditional payment.  Therefore, Parkview was within its rights to place a lien and not bill Medicare.              Top

Malpractice & Experts

Osborne v Adams
SC Supreme Court

The South Carolina Supreme Court ruled that a hospital advertising itself as a top notch neonatal hospital can be held to that standard via agency.  The plaintiff sued the independent neonatologists and the hospital.  The hospital could be sued under the theory of ostensible agency because a reasonable person seeing the advertisement may believe the doctors are hospital employees.  This agency is now not limited to only emergency room physicians.

Richardson v Methodist
Miss. Supreme Court

In a medical malpractice case a nurse could testify as an expert in nursing deficiencies but not as to a wrongful death action.  The Court stated that even though not a physician the nurse may testify in the pain and suffering aspect of the case but the weight of her testimony since she is a nurse and not a physician may be affected.  She may not testify as to the causal connection between the alleged nursing deviations and the patient's death.  She lacked the requisite education and experience as an expert to testify on the causal link. 

Estate of Waters v Jarman
NC App Ct

A suit for medical malpractice was filed by Waters' estate against physicians for failure to diagnosis appendicitis.  The hospital was also sued for failing to adequately credential the physicians and failure to monitor the physicians.  The plaintiffs provided experts against the physicians but not against the hospital.  The hospital requested summary judgment but lost.  The court stated that corporate negligence claims for policy, management or administrative actions are not malpractice and do not require expert testimony.

Forte v Connerwood Healthcare
Indiana Supreme Court 

The plaintiff placed her five year old developmentally disabled child in a nursing home.  The patient was dead a week later.  The plaintiff sued the home for wrongful death which included punitive damages for wanton and willful acts.  The Court of Appeal disallowed the wrongful death ability to get punitives but allowed them for the part of the suit for loss of consortium.  The Supreme Court denied punitives for loss of consortium as well since it had never been allowed in the past. 

Cangemi v Cone
Penn. Super. Ct.

The patient went to the ED with abdominal pain. X-rays revealed an abdominal aneurysm but the report was never sent to the patient's admitting physician.  The patient was discharged and treated for diverticulosis.  Two months later the patient returned to the same ED and again sent home, where his aneurysm popped and he died.  The estate sued the hospital and the ED physician.  Both were dismissed prior to trial.  The patient's physician was found negligent but there was no causation so no damages.  The Superior Court of Appeal disagreed and ordered a new trial against the hospital, ED physician and the patient's physician.  The court stated that if the patient's physician knew about the aneurysm he would have treated it was enough to show causation.  The court also stated that no expert witness was required for the case against the hospital since the matter is so simple.  The fact that the diagnosis of an aneurysm is made and the report never reaches the patient's physician is negligence of either the hospital or the radiologist.  This is a matter of fact that should be left to the jury. 

Paul v Skemp Clinic
Wis. Supreme Court

The Wisconsin Supreme Court ruled that the Statute of Limitations in a medical malpractice case begins when the injury and not the misdiagnosis occurs. A nine year old began to have headaches and these continued for the next 10 years.  She eventually was diagnosed with an AVM that ruptured causing death. The trial court and the appeals court both ruled the statute had run since it started when the headaches began.  The Supreme Court said the statute began when she was found to have the AVM and died.  

Aka v Jefferson Hosp. Ass'n.
Ark. Supreme Court

 The plaintiff sued the hospital and various physicians for the wrongful death of his pregnant wife and unborn child.  The wife died during labor from an amniotic embolism.  The Supreme Court overruled its own prior decision and stated that a viable fetus, no dispute as to the viability, is a person under the wrongful death statute.  The change was due to the legislature stating a fetus over 12 weeks of gestation is a living person under criminal manslaughter law.  There is also a state constitutional amendment that states that the it is the public policy of Arkansas to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.  

Rivera v Arana
Ill. App Ct.

A minor went to a clinic with his aunt and without an appointment for an examination of his feet. The physician examined the feet and did not charge the boy.  The aunt was beaten the next week by her husband.  While she was hospitalized her husband abused the child.  The boy's mother, who had previously abandoned him, sued the doctor for medical malpractice for failure to find abuse.

Hospital Causes Emotional Distress

Elliott v Methodist Hospital
Tex. App. Ct.

Elliott underwent surgery at Methodist for ulcerative colitis.  Her rectum and part of her sigmoid remained. The diagnosis was changed during surgery to possible Crohn's Disease.  If it was Crohn's Disease she would need secondary surgery to remove the remaining colon and rectum.  The pathological diagnosis was Crohn's Disease.  The patient sought a second opinion and requested her records and slides.  All were sent to the patient's doctor except the four slides that proved the Crohn's Disease.  She continued to request the slides for 18 months during which time she became depressed and had pain and rectal bleeding. She finally sued and then the slides were sent. She then sued for emotional distress and negligence.  The Trial Court ruled for the hospital and the Court of Appeals reversed.  Methodist's expert never examined the patient nor saw the 4 slides showing the Crohn's Disease.  Elliott's expert after seeing the slides stated she did have Crohn's but 10 months later diagnosed ulcerative colitis. The Appeals Court stated that the non-production of the slides without explanation was enough for extreme and outrageous conduct for emotional distress.  The Appeals Court stated the case should go to trial.


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.