December 15, 2001 Legal


Malpractice Stupidity

Informed Consent


Physician Payment From Defunct IPAs

Corporation Employees

HIPAA & Privacy

Peer Review

Sexual Harassment

Fraud & Abuse

Waste of Money Suit

Discrimination Suit


Red Cross in Contempt?


In a Orange County, California Superior Court settlement (therefore the parties are unknown)  the plaintiff underwent a total thyroidectomy for Graves Disease.  The operation was without incident and the patient went to the Recovery Room.  An hour later, after being checked by the anesthesiologist, the patient was moved to the "overflow room".  Then the change of shift occurred after about an hour later the patient began having difficulty breathing. A registry nurse loosened the dressing and the patient went into immediate cardiac arrest.  The ED physician responded and saved the patient but the patient is in a PVS.  The plaintiff claimed that the surgeon was below the standard of care since no drain was placed and that radioactive iodine would have been the preferable therapy.  The hospital stated the physician was solely responsible for the post operative condition.  The physician stated that surgery was an appropriate therapy and the hospital did not notify the surgeon of any problems.  The hospital paid $1,150,000 and the surgeon paid $1 million.  This is a plaintiff's attorney dream- to have the two defendants blaming each other.                

ED Death 

In Tallahassee, Florida a 88 year old woman died after waiting untreated in the Martin Memorial Med Center emergency room waiting area for four hours.  She was seen only once by a nurse who began to take her vital signs and left. The hospital has now placing a staff member in the waiting room to monitor patients. 

Several days later a patient came to the ED for an allergic reaction and was given epinephrine IV instead of IM or SubQ.  She was hospitalized and the hospital has admitted its mistake, says the patient's attorney.  

Retractor Left in Patient

In Seattle a person set off the metal detector at Sea-Tac Airport.  All were mystified by this occurrence until an x-ray revealed that surgeons at Washington Medical Center accidentally left a 13-inch long 2-inch wide "ribbon" retractor in his abdomen during an operation for removal of a stomach tumor.   The foreign body was removed in another operation by a different surgeon at a different hospital and then Mr. Church received $100,000 for the error.  This hospital, unlike many, did not do routine instrument counts prior to closure. 

Lopez v Rashnidi
San Bernardino, CA Superior Ct.

What would you do? A 32 year-old male comes to the office complaining of rectal bleeding.  He was examined by his primary care provider and treated with Proctofoam.  He was asked to return if the bleeding did not stop.  The patient was next seen one month later for sinusitis.  He then wasn't seen for 22 months when he had a Duke D colon cancer with liver metastasis.  The plaintiff sued claiming he should have been referred to a specialist for the bleeding.  The patient sought $7 million and the defendants offered $29,999.  In California anything $30,000 or above must be reported to the Medical Board of California.  The jury after a four week trial deliberated for four hours and returned a defense verdict.

Bonton v Nursing Home
Texas Superior Ct.

A jury awarded $21 million to the family of a patient in a nursing home that died.  The cause of death was aspiration.  The nursing home made so many mistakes they got off easy. The patient had pneumonia and was ordered to the hospital by the physician.  Not only did she not go but she was not given the ordered oxygen and 911 was never called.  Then a nurse's aide with no training and a history of problems suctioning patients attempted to suction Bonton.  The patient gagged and a different nurse was called.  She didn't come for 10 minutes because she was on break.  The supervisor omitted all information about the suction on her report about the patient's death.  The award will be reduced due to the state law.  The final judgement will be announced soon.

Eberle v Milefchik
LA Superior Ct.

The patient was admitted to the hospital for treatment of asthma, bronchitis, migraine and abdominal pain.  The pain was so bad the physician had to give Demerol q4h to help the pain.  On the fifth day she had a seizure and dislocated her shoulder.  The patient claimed the seizure was secondary to Demerol and the dose should have been lower.  The case lasted six days and the jury returned a verdict for the physician in 20 minutes.

Elective Knee Surgery

In Minnesota the three deaths following knee surgery have been tentatively linked to the cadaver source of the parts.  

Cardiac Quality of Care

In a Pennsylvania study from July 1998 to June 1999 there was a15% readmission rate within 30 days.  This is usually for infection and postoperative complications.  This rate is huge compared to others and probably signals a quality of care concern for these institutions.          

St. Michel Hospital in Milwaukee has agreed upon settling a case involving the lack of a specialist to perform an emergency cardiac catheterization.  There was a inappropriate three-hour delay that caused enough heart damage that she required a heart transplant.  The settlement was $1.1 million.  This is another beauty of hospitals having physicians as employees.   Top

Malpractice Stupidity

Scott v Cedar Sinai
LA Superior Ct.

The patient had general anesthesia for a ureteroscopic stone removal.  She had refused regional anesthesia.  She knew she had old and previously injured dental crowns.  During the procedure she bit down on the oral airway and broke her crowns.  She then sued for malpractice and this I don't understand found an attorney dumb enough to take the case.  The value of the crowns are $3570.  There was one expert for the plaintiff and two for the defense.  These are not cheap.  There was a two day trial.  This cost all a lot of money.  The jury returned a defense verdict in 30 minutes.  The plaintiff's attorney had to lose over $50,000 out of pocket on the case for expert witnesses and time.  The plaintiff lost nothing except the money needed for the new crowns.  The defense also lost a significant amount of money but if they had settled there would be a report on the doctor's NPDB record.            Top

Informed Consent

Olbricht v Hoffman
LA Superior Ct.

The plaintiff had a long history of colon polyps treated with local fulguration.  The patient has had multiple biopsies in the past and one came back with carcinoma in situ.  A discussion about a low anterior resection and its related potential complications ensued at that point. Over a year later multiple polyps were found in the same area as a polyp that was removed a month earlier.  The physician then pushed for a low anterior resection for the aggressive polyps.  The patient and his wife held a long discussion with the physician regarding the alternatives and potential complications.  A month later he underwent the low anterior resection and the complications enumerated pre-operatively occurred.  The polyps removed were benign and the patient sued for lack of biopsy and lack of informed consent.  The result was a 12-0 decision for the physician after a 5 day trial and a four-hour deliberation.  It's hard to believe the plaintiff actually found a physician to be an expert on his behalf.        Top


Lewis v IPA of Western New York
723 NYS 2nd 845

A physician sued the IPA for non-renewal of his contract due to patient advocacy.  This is under a NY Public Health Law and said all records of the organization were discoverable as were any related records of other physicians.  This exception to the usual confidentiality allows for the patient advocacy provision.                Top

Physician Payment from Defunct IPAs

CMA v Aetna, et al.
CA Ct. App.

The facts in the case were HMO's have contracts with physicians to see their patients and to pay them for the care.  This is done through an intermediate contract with an IPA.  The IPA goes bankrupt and the physician is left without payment.  The suit by the California Medical Association asks for payment by the HMO directly to the physician for the patient's care.  The trial court and the court of appeal have both said no.  The HMO has paid the IPA and even though they knew the IPA was essentially bankrupt they still owed no direct duty to the physician.  The moral to the story is that when you believe your IPA is beginning to be insolvent, drop out as soon as possible.  It is better to get no money than to see the patient, get no money and have the liability.  Many physicians have nobody but themselves to blame for their lack of business acumen and refusal to ask for help. Their greed and mistaken belief that their peers would not take them for a ride leads to their financial downfall.                        Top

Corporation Employees

Wells v Clackamas Gastroenterology PC
9th Circ

Wells, a female employee of the group for 11 years, was terminated from her position.  She sued under state wrongful discharge and under the federal ADA statute.  The ADA claim was tossed out of the District Court since under the ADA to be invoked the business must have at least 15 employees at the time of the discriminatory action. Clackamas had less than 15 employees but also had 4 physicians.  The District Court said the physicians were not employees but shareholders.  The 9th Circ. overruled stating the physicians were employees and had signed employee agreements.  This make the corporation over 15 employees and the case against the corporation could proceed. This means that in the 9th Circ. all physicians who are part of a corporation are to be considered employees.                 Top

HIPAA & Privacy

O'Donnell v Blue Cross/Shield Wyo.
D. Wyo.

A patient who was denied payment for a surgery due to pre-existing condition filed suit against the insurance company on multiple basis, including a violation of HIPAA.  This cause was tossed since there is not a private right to sue under HIPAA. 

Winstrom v Employers Ins of Wausau
Wis. Ct. App

In a worker compensation case the carrier released the patient's drug addiction to the employer after which it was determined that further treatment was not required.  The patient sued the carrier for disclosure of medical records and invasion of privacy.  The court stated that in Wisconsin there is a statute that the employee waives the patient-physician privilege for all conditions reasonably related to a worker's compensation claim.   Top

Peer Review

Moores v Permanente Med. Grp.
Cal Ct App

A Permanente physician had a peer review by an outside reviewer.  the outside reviewer stated that the physician should be removed from practice.  The physician was then summarily suspended from Permanente and then a recommendation was made to terminate his employment and his hospital privileges.  He sued for mandamus after exhausting all administrative reviews. The writ was denied since he challenged the Judicial Review on the basis that all evidence was not allowed.  The Court stated that non-relevant evidence may be excluded and a review of the entire record shows enough evidence to support all the charges against the physician.  The Court also stated that they would not second guess the penalty imposed and the decision to terminate the physician was reasonable.           

Ebony Lake Healthcare v Texas DHS
Tex, Ct. App.

In a case where the DHS requested peer review documents from a hospital, the hospital went to court for a restraining order against the DHS request.  The court ruled in favor of the hospital.  The hospital showed the specificity of the report in question to the need for peer review as opposed to the DHS contention that the report was business records.  In California, the Medical Board would have received the information because of the way the law is written.     Top

Sexual Harassment

DHS v Superior Ct. (McGinnis)
CA Ct. App.

In a new and groundbreaking decision the California Appellate Court broke from the Federal rules and stated that if one sued in state court the federal rules did not apply.  This means that all the work that organizations have done to investigate and punish harassers will be for naught.  The California law states that the employer is deemed to know and is liable for the harassment by a supervisor even if the company knew nothing about it.  A bad law and hopefully one that will be appealed to the California Supreme Court.        Top

Fraud & Abuse

US v Scripps

The government has decided to intervene in a fraud qui tam (whistle blower by a former medical device salesman) case against Scripps.  The government alleges that they billed Medicare for experimental devices they knowingly knew weren't covered by the program.  Scripps billed for a Rotoblator for declogging coronary arteries and a Baxter Coronary Guidewire used in angioplasty.

US v United Memorial Hospital

A federal grand jury has handed down a criminal indictment against the former chief of staff and the former chief of the ED as well as the hospital and its former CEO.  The hospital is charged with 30 counts of wire and mail fraud.  The CEO is charged with false testimony.  The physicians are charged with conspiracy to commit wire and mail fraud.  This case comes out of a prior one where a physician was convicted of 33 counts of mail fraud for billing for unnecessary procedures and the hospital also billed facility charges for these unnecessary procedures.  The current indicted physicians are accused of not taking appropriate corrective action in the former case.  Why would anyone want to be a chief of staff or department head?  This is criminal and not covered by any insurance for the physicians.  The hospital may indemnify them but doesn't have to. I would think that all physicians working for a hospital as Department chief or Medical Staff Office would insist upon indemnification.           

US V TAP Pharmaceuticals

TAP was given five years probation as well as the largest total fine in history of $875 million.  This included a $275 million criminal fine.  Top

Waste of Money Suit

Two people in Madera County California are suing Madera Hospital for dropping their Medicaid contract due to insufficient payments.  The claim is that the hospital is treating Medicaid patients differently than others as required under the Hill-Burton Funds.  The hospital still must treat emergencies and do outpatient procedures.  All elective inpatients will be transferred to other facilities.  All hospitals contract or not with any insurer and Medicaid is no different than any other insurer expect is is riddled with bureaucracy and poor payments.        Top

Discrimination Suit

Shades of Stanford and their loss of their discrimination suit, Dr. Sunseri, a neurologist at University of Pittsburgh Medical Center was let go.  She filed suit alleging sexual discrimination.  She won $210,891 in back pay, $60,000 in front pay and $300,000 for humiliation and loss of professional standing.  She claimed and won that she was treated differently than male physicians and that she and other female physicians were let go and replaced by males.       

Jackson v U. Texas M.D. Anderson 
    SD Tex

A physician sued the University, her employer, for contract breach, and racial discrimination.  She found when she started to work the terms she had orally agreed to and the ones she was offered in her contract were materially different.  Some, but not all of the terms of the contract, were changed.  She also believed she was slighted and not given support and therefore was constructively discharged.  Wrong, said the court.  She did not show the University created an intolerable working condition to show that any reasonable employee would need to resign.  She also did not prove racial motive for the University actions.   Top


Webb v State Board of Ohio
Ohio Ct. App.

A psychiatrist appealed the evocation of his license for failure to note on his application that actions had been taken against him in another state.  In fact there had been investigations but no actions.  The third time he answered the question he admitted he had inadvertently answered the question wrong.  The Board had changed the question from action to action or investigation. The Court stated that there needs to be intent to violate the state law and the psychiatrist did not have the required intent.  So take that, Medical Board.

People v Manos
Ill. App. Ct.

Two dentists were subpoenaed to turn over individual patient records as well as patient logs and appointment books.  The dentists refused stating patient-physician privilege.  The licensing board stated this only applied to physicians and sued to enforce the subpoena.  The court ruled that dentists are physician like and the rule holds for their individual patient records but not for the general business records in the appointment books and patient logs since case law had shown that just revealing patient names does not violate the privilege.  It's nice to see dentists are people too.                    Top

Red Cross in Contempt

The US FDA has requested a contempt of court citation against the Red Cross.  This is for a continuing history of safety violations in regard to their blood program. The FDA contends that " the Red Cross has exhibited a corporate culture that has been willing to tolerate an unacceptably low level of quality assurance and a lack of concern for the public it is supposed to serve".  This comes soon after the Red Cross fiasco in the 9/11 "Liberty Blood Drive".        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.