December 1, 2002 Recent Legal News


Medical Staff


Peer Review

HCA Settlement

Medical Board and ADA



Free Health Care


Physician v HMO

Informed Consent and Battery


Sathyavaglswaran v Newman
US Supreme Ct.

The Supreme Court refused to hear the case by parents against the LA County Coroner for taking their dead children's corneas without permission.  The Coroner then sold the corneas to an eye bank for several hundred dollars per pair.  A class action has been sought but not decided.  The 9th Circuit had ruled that permission was required prior to the harvesting of the organs.  The law in operation when the case was filed allowed the coroner to do the harvesting if they knew of no objections.  A new law passed since the case was filed requires prior permission.        

Smith v OU Medical Center
Case not filed yet

A high school basketball star who was to sign a letter of intent for a scholarship to the University of Colorado had wrong side surgery.  He went in for a left heel surgery but had a right one instead.  The mother is a nurse at the physician wing of the University of Oklahoma which is not affiliated with the Oklahoma U Medical Center.  The Center has offered assistance to the family and this has been refused.    

Kaiser v Ohio State Univ.
Ohio Ct. App.

An attending physician was sued for malpractice for failure to diagnose appendicitis.  The attending was deemed not to have created a physician patient relationship since he saw the patient for less than five minutes, discussed the case with the resident, reviewed the chart and signed off on the record.  He therefore was only a supervisory person and not acting independently.          

St. Joseph Hosp. v Wolff
Tex. Supreme Ct.

In the underlying case the teaching hospital who had the residency program was held vicariously liable for the negligence of a resident who was on loan to another program at a separate hospital.  There was no joint venture or enterprise between the two institutions.  The high court said no liability for the non-supervisory hospital and reversed stating St. Joseph had no liability.         

Bui v ATT
9th Circ.

Boi, an employee of ATT/Lucent in Saudi Arabia, needed a dangerous surgery.  The question Bui posed was should it be done in Saudi or elsewhere?  ATT/Lucent had hired SOS for their emergency evacuation team.  SOS recommended Boi stay in Saudi.  Boi stayed, had the surgery and died.  Boi's wife sued since Boi was told by ATT/Lucent that it would take several weeks to get his passport, but he wasn't told it could be done expeditiously if there was an emergency.  She also sued ATT/ Lucent for negligently picking SOS and for other administrative errors.  The court ruled that many of the claims were administrative matters regarding Boi's employer ATT/Lucent and these were preempted by ERISA.  The case against ATT/Lucent for failure to tell them about the passport retrieval was not preempted nor were any claims against SOS since they were not the employer.     

Mossallatim MD v Parsons, JD

Dr. Mossallatim of West Virginia sued the attorney who filed a malpractice law suit against him and won a settlement.  The doctor spent four years and the insurance company spent $80,000 defending the doctor in the case.  The kicker is the doctor never saw the patient and the case was ultimately dropped.  Dr. Mossallatim was named because his name was in the chart of an auto accident patient but he never saw the patient.  He was not on call and was operating on another patient when he was contacted about the auto accident patient with a possible aortic rupture.  Dr. Mossallatim could not find any attorney willing to sue Parsons, so he filed pro per.  Later he found an attorney to help him.  The basis was that Parsons did not do his homework and find out that Mossallatim was never consulted.        

Clements v MCV Ass. Physicians
VA Circ. Ct.

The estate of a person who died after aortic aneurysm surgery sued the attending for malpractice and the hospital and medical group that hired him for negligent credentialing and negligent hiring.  The court threw out the negligent hiring and negligent credentialing aspects since there was no way the medical group could know the physician would create a wrongful act and there was no employer employee aspect with the hospital. The attorney should be sued for negligent attorneying.    Top

Medical Staff

Exeter Hospital Medical Staff v Exeter Hospital
NH Supreme Court

In a decision by the scandal ridden New Hampshire Supreme Court they decided that the hospital medical staff is not an individual agent but one and the same as the hospital.  Therefore the medical staff could not sue the hospital.  The decision was based on no law but an opinion made 20 years ago by two attorneys who took information from an unscientific article.  This goes against other decisions in the country such as the case a decade ago in California involving the medical staff suing the hospital board to allow an elected chief of staff to sit.  It is hoped that this poor decision will not be followed by other jurisdiction after they look at who the court members were.        Top


Jaffe v Catholic Med Ctr.

A physician sued the hospital under the ADA.  The interesting aspect of the case is that the hospital never employed the physician but was held liable under an ostensible agency theory.  The hospital and the hospital owned physician practice shared common management and centralized control of labor decisions.  Similarly the hospital could be liable under any state law breach of contract claims using a corporate alter ego theory.   This is one application of why many PHOs have gone into dissolution. 

John v Marshall Health Serv.
Tex. App. 

The Appeals Court overturned a lower court who had granted a directed verdict for the hospital.  They stated that the physician had presented enough evidence that the hospital fraudulently induced him to come to the community to practice medicine.  The disclaimer clause in the contract was not dispositive and only boilerplate.  The case now goes to trial. 

Schrier v Univ. of Colorado
Not Yet Filed

Dr. Schrier, the chief of Medicine at the University, was fired.  Letters of support for the physician have been signed by about 50 faculty members.  The Dean of the School has stated that it was time for a change.  Dr. Schrier has stated that he does not serve at the pleasure of the Dean but has a continuous appointment where he can only be terminated for cause.  Watch for the suit to be filed and then the settlement. Top

Peer Review

Payman v Abdrabbo & Mirza
WD Vir.

These separate cases filed by Payman were decided at the same time.  Payman sued on conspiracy to get him fired because of his religion.  The court through out the charges for two reasons.  the first was there is not legal theory of conspiracy in personal services contracts and the second is the HCQIA immunity for peer review.        Top

HCA Settlement

The Justice Department is delaying the civil monetary settlement with HCA.  This is for hundreds of millions of dollars.  The reason is the government now believes it is too lenient on HCA and may go against them in a civil fraud case.          Top

Medical Board and ADA

Hason v Medical Board of California
US Supreme Ct.

The Supreme Court has chosen to rule on this case where the physician, Dr. Hason, accused the state of discrimination.  He was turned down in 1995 for a medical license on the grounds of mentally ill, depression and drug dependency.  He sued on the basis of discrimination under the ADA.  The state argued they are immune from suit under the sovereign immunity clause.  The 9th refused to dismiss under the sovereign immunity rule but Hason may not be able to show he was discriminated against.  The state appealed to the Supreme Court.  The Supreme Court stated they will not rule only on this case but instead focus on the broad application of whether all state agencies are immune from suit by disable persons who want state services.        Top  

Fraud and Abuse

US v McLeod Reg. Med. Ctr.

They paid too much for six physician practices to get a future cash flow.  This will cost McLeod of South Carolina a cool $15 million.  In this false claim suit, the government used the rationale that it is similar to an anti-kickback claim.  The hospital stated, as they paid the money, this is only a disagreement over the valuation of the practices.  This was a qui tam suit joined by the government.  The person who originally filed was then dropped since he set up the deal and therefore was a party to the illegal action.  He received immunity fro prosecution in return for dropping his money claims. The hospital actually bought 20 practices but grossly overpaid for six of them to get the referrals.  There was also a Stark violation since the physicians were compensated and referred designated health services to the hospital that paid them. 

US v Winn, MD

The University of Washington's Dr. Richard Winn, a world renowned neurosurgeon, paid a fine of $4,000, was to repay $500,000 and agreed to 1,000 hours of community service.  Dr. Winn admitted he did false claims to Medicare while head of neurosurgery.  The community service will be in Nepal.  I wonder if he can deduct the expenses. 

US v Marshall, MD

This Connecticut radiologist Dr. Daniel Marshall, agreed to repay Medicare $433,000 plus penalties and fines up to a total of $986,000.  This was for more extensive exams than actually performed or nursing home patients and submitting bills for another physician without a Medicare number.

US v Dialysis Holdings, Inc.

The parties agreed to settle a suit for $4.1 million for defrauding Medicare by ordering medically unnecessary blood draws and laboratory tests.  It split one draw into two and then did the tests on different days with two separate billings.  Transitional Hospitals Corp., a subsidiary of Dialysis Holding,  paid an additional $1.5 million.         Top


Florida v Mopper, OD

Richard Mopper, OD was arrested on Medicaid fraud for illegally soliciting juvenile patients.  He is being accused of eleven counts of hiring recruiters to find and transport children to his Ft. Lauderdale office.  If convicted it could be five years behind bars and a $5000 fine per violation.        Top

Free Health Care

Veterans v US
Washington DC Circ.

The federal appeals court in Washington DC had denied the claims of the veterans of Korea and WW II that the government promised them free health care for life if they stayed in the military for over 20 years. There was no doubt the government made the promise but there was no valid contract since the promises were not backed up by law.  This will lead to an appeal to the US Supreme Ct.  The government kept the promise until the vets became 65 and eligible for Medicare which caused the purchase of Part B Medigap policies. The majority justices ruled against the vets but they were sympathetic to their cause.  The dissents in the 9-4 decision were scornful of the government's lack of character.  Congress has recently passed a law providing the free care beginning in 2002.  This ruling is for the care between 1995 and 2001.        Top


Ctr. for Reproductive Law v Indiana
7th Circ.

Indiana passed a law requiring women who wish an abortion to get face top face counseling prior to the procedure. This must be done at least 18 hours prior and be in the presence of a physician or nurse. The 7th Circ. agreed with Indiana but an intervention by the Center obtained an injunction until the US Supreme Court decides whether or not to hear the case.

Maxin v Stark Co. Social Svs.
Ohio Family Ct.

The family court ruled that the county social service unit could not force a family to continue chemotherapy for their seven year old child with leukemia.  The parents switched their son to a diet regime after he went into remission after one of three planned chemo sessions.  The new physician is a medical family practitioner licensed also in holistic medicine.        Top

Physicians v HMO

The three judge subset of the 11th Circuit agreed to hear Judge Moreno's order certifying the class action of 600,000 doctors against the HMOs.  Judge Moreno went so far as to state that the physicians hadn't just alleged misconduct, they have factual evidence to support the conclusions. The HMOs want the disputes to resolved by each doctor with each HMO with arbitration.         Top 

Informed Consent and Battery

Meyers v Epstein

The parents of an eleven year old signed a consent stating that dr. Epstein or one of his disignees would perform the surgery on their daughter.  When questioned Dr. Epstein stated that he would perform the surgery.  He did not.  The court found that he deviated from the standard of care and that this was a proximate cause of any emotional distress.  This could proceed to trial.  To make matters worse the parents also sued the actual surgeon for battery since there was no consent to due to the verbal assurance that he would do the surgery.  This was also allowed to go to trial.  The moral is if you say you're going to do the surgery, do it.        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.