December 15, 2004 Recent Legal News





Peer Review

Money Issues

Fraud and Abuse




Smith v Med. Board Iowa
Superior Ct. Iowa

A judge has ruled that Smith's record from another state be expunged from the public record after the Iowa Medical Board granted him a license to practice in the state.  The ruling only effects new licensees but an appeal is pending so only final judgments can be made public, not unfounded allegations.   

Draper v Jasionowski
NJ Superior Ct. App. Div.

Draper in 1982 was born by vaginal delivery even though the physician knew the baby was a frank breech.  Consent was obtained for both vaginal and C-section.  Draper was born with problems from the vaginal delivery, including an Erb's Palsy.  In 2002 Draper sued the defendant.  The trial court ruled for the physician but that was overturned by the Appeals Court.  This court stated that the physician had an independent duty to the unborn child and the mother to obtain the mother's informed consent.  The defendant stated that the statute of limitations had also run since it was derivative of the mother's action.  The Court ended by stating precedent in earlier decisions that there is an independent cause of action by a newborn upon reaching majority that is separate from the mothers.  

Long v Jaszczak
North Dakota Supreme Court

Long died two days following an allergic reaction to iodine given intravenously for an IVP (X-ray exam).  The husband sued for lack of informed consent.  There were several issues in this case.  One is whether the hospital can be sued for lack of informed consent.  The case seems to stand for no.  It is the physician's duty to obtain the consent.  Also the radiologist was dismissed since it is the attending physician who needs to get the informed cont.  The next issue was the statute of limitations.  The incident occurred on July 9, 1999, and the doctor was served on July 13, 2001 on a two year statute.  The court ruled that since the claim began the day after the exam on July 10 and the service was given to the sheriff on July 9, 2001 the statute had not run.  The Court also stated it was for a jury to decide whether the incidence of death from an IVP was so remote as to be needed to be told for an informed consent. 

    Hargroder v Unkel
 La. Ct. App.

In a case that must be unique to the state that uses parishes instead of counties, the lower court gave a directed verdict to the plaintiff in a malpractice case after a review panel stated Unkel's care was below the standard of care but did not affect the outcome.  The jury then awarded the plaintiff $150,000 in damages for a loss of chance for a better outcome.  The Court of Appeal stated the award was excessive since the general damage award was general, the jury could give a subjective amount.  However, the trial record had almost no evidence of the degree of damage suffered.  The court reduced the amount in half.  

Druckman v West Virginia

 Two attorneys have filed a case in West Virginia to determine the legality of the med mal caps.  They want to know before agreeing to accept a med mal case against a Charleston hospital.  West Virginia has a $500,000 cap on med mal jury awards if the case involves trauma care.  The attorneys are attempting to find a result without having the case go through the system.  They contend that the limit on trauma cases discriminates.

Azari v Kaiser
Arbitration Award

 A Berkeley, California man accused Kaiser of doing unnecessary heart surgery which cost him his sight.  The panel awarded $2.8 million for medical costs and loss of future earnings.  He and his wife were also given $250,000 each for non-economic damages.  It appears that the Kaiser physicians mixed up  his stress echo with someone else and also misread his arteriogram which showed normal flow as one with restricted flow.  The eye problem came from the Kaiser hospital and physicians no recognizing internal bleeding post operatively.      

Plantation Hosp. v Horowitz
Fla Dist. Ct.

 A patient sued a hospital for money due to the physicians who committed malpractice not having the required insurance.  The hospital may be liable but not strictly liable.   

Patients v Mercy Hospital

Seven men sued Mercy Hospital in Sacramento, California, for sexual assault by a male health aide employed by Mercy Hospital.  The aide, Devery Wilkerson, was convicted of 11 felonies of sexual abuse in the hospital.  The plaintiffs want an HIV test on Wilkerson, money, an apology and a public discussion of policy changes.   Top 


Anthem Health v Acad. of Med. 
Ky. Appeals Ct.

The Court refused to compel arbitration and allowed a suit to go forward.  The suit by the Academy of Medicine of Cincinnati against Anthem and other insurers alleges conspiracy to fix and lower the insurance reimbursement rates paid to hospitals and physicians.  The Court stated that even though the physicians had arbitration agreements in their contracts with the insurers, the antitrust claims did not fall under the ambit of the scope of the arbitration clauses in the provider service agreements.        Top


Hosseinipour v Appalachian Health Ctr.
Ky. Ct. App.

Dr. Hosseinipour was an OB that the system recruited for a community.  They stated in a letter that even if he did not wish to be employed, they would help him develop his practice. He moved to the community in 1986 and stayed until he retired in 2001.  His income began to decline in 1993 when the Kentucky Department of Health and the System opened up a prenatal center.  Hosseinipour filed claims for the usual interference with business and the system received summary judgment.  On appeal the court agreed with the summary judgment.  They stated the letter was not a binding contract since there was no consideration.  The court also ruled that in setting up the prenatal clinic the system did not influence or mislead patients as to their choice of delivering physician.  The clinic had no duty to provide the prospective mother of Hosseinipour's name. The clinic had told patients that Hosseinipour had made mistakes, it was not defamatory since the physician had acknowledged the errors.   

Manny v Pension Fund
7th Circuit

The plan would not cover gastric bypass surgery on the basis that it was cosmetic.  The plan also had in its contract plain language stating a categorical exclusion for obesity reducing surgery.  Manny requested coverage for the procedure which was denied.  He is six feet one inch tall and weighs 470 pounds.  He already had many obesity related diseases.  He sued under ERISA and the District Court gave summary judgment to the plan.  The 7th Circuit stated that deference must be given to the plan.  The court could not state that the plan's decision was unreasonable.  The contract did state that cosmetic surgery would not be covered which inferred that medical disease, as here, would be covered.  However, the contract also stated that the obesity related surgery would not be a covered benefit.    

    LePresti v Rutland Health Service
Vt. Supreme Ct.

LePresti was an employee of Rutland as a primary care physician.  After some time he stopped referring patients to some of the specialists due to overzealous surgery and not providing quality care.  He was expected to refer to these specialists.  The Service closed the office he was in, transferred the other physician in the office and terminated LePresti on the no-cause portion of his at will contract.  LePresti sued for the usual things plus unfair termination due to his referral practices.  The lower and Supreme court went for the Group on all counts except the referral issue.  This is a public policy claim which trumps the no cause termination.  The case was remanded to better flush out this issue in the lower court. 

Carswell v Oconee Med Ctr.
Ga. Ct. App.

 Carswell signed an agreement with Oconee that he would stay for three years and the Oconee would pay Carswell the difference between an agreed amount and what he made.  If he made more than that amount he would pay the difference to Oconee until the amount subsidized had been repaid.  The amount was calculated per month.  Carswell never repaid the $96,899.51 that had been advanced to him under the contract.  Oconee sued and Carswell defended on the statute of limitations.  The trial court stated summary judgment for the hospital but the appeals court overruled.  The rationale was that the contract was divisible and therefore the statute had run on all but one repayment.  Top


Binkley v Edward Hospital

In a case, whose only rationale for part of the decision was that it was based on old law, stated that a person who presented to the ED for a medical condition and was hospitalized for the condition was then released prior to the stabilization of the disease.  The plaintiff, a minor, was admitted for a mental illness and then discharged when the insurance ran out.  The mother refused to accept the son upon release from the hospital and the son was given to DCFS.  Binkley was originally sent to jail and then to a shelter where he was supposedly denied appropriate care.  Suit was filed against multiple individuals and institutions.  The EMTALA suit against hospital employees were dismissed since they can not be sued under the EMTALA statute, only the hospital.  The Court stated the issue against the hospital was okay to go forward.  The court also allowed the 1983 claims against multiple individual to go ahead since he was deprived of of his interest in receiving mental health treatment.  The plaintiffs couldn't sue the County under the 11th Amendment but could sue the county employees as individuals.  This case needs to be appealed.        Top

Peer Review

Wahi v Charleston Area Med. Ctr.

In a rare physician win in a peer review case, Wahi was a member of the medical staff of the private hospital.  As he was looking to associate with another practice, the hospital began an investigation against Wahi.  The hospital chief of staff appointed an investigative committee composed of all Wahi's competitors.  The hospital eventually suspended Wahi and reported him to the NPDB.  The medical board also became involved and investigated and cleared Wahi.  Wahi sued CAMC for multiple violations in federal court.  The hospital wanted the case tossed and referred to its peer review body.  The court said not necessary.  There were no questions that needed to be solved prior to the court rendering an opinion.  The court rejected the hospital's statement that they are protected under HCQIA.  The court stated that the plaintiff did not have to plead a lack of presumptive immunity in the complaint.  The court agreed to dismiss antitrust since Wahi did not show how his case affected interstate commerce.  The court did give Wahi leave to amend to show interstate commerce violations.  The Count dismissed as without merit the Due Process claims because the hospital reported him to the NPDB.  The Court did allow to go forward his 1983 claims of lack of due process because the hospital reported him to the medical board.  The Court dismissed the invasion of privacy of a claim that the hospital had stated to a reporter that he had been reported to the NPDB.  The Court stated that what was in the report is confidential not the actual making of a report.  

Mason v Central Suffolk Hosp.
NY Supreme Ct.

The Court ruled that unless a hospital medical staff has something in the bylaws allowing it to be sued, there can be no monetary liability for credentialing decisions.

Adkins v Hosp. Authority of Houston County

A physician who had his privileges suspended sued the hospital and asked for the peer review documents of other physicians who had been peer reviewed.  The Court stated these documents are protected under law.  

Jaffe v Kaiser
Ca. App.

Jaffe was removed from the hospital for quality of care concerns.  He sued following losing at arbitration.  He lost there as well.

Jacksonian v Temple Univ.
Penn. Super.

 As part of a med mal case the plaintiff asked the hospital during discovery if they had queried the Data Bank regarding the practitioner.  The hospital refused to answer.  The court said the question was proper.  They can ask if queried but not what the report stated. They can also be asked why they failed to ask the Bank.     Top

Money Issues

Med. Society of New Jersey v Blue Cross and Shield

The New Jersey Blues alleged that groups of cardiologists owed them $15 million due to overpayments from as far back as 1999.  They gave the cardiologists within six weeks. The insurer stated the overpayments were from the Blue's computer error.  If the physicians did not pay the Blues were going to take the money out of future payments.  The suit is to stop the unilateral taking out and to require the insurer to prove its allegations in court.  The physicians also claim that their contract gives them 90 days to pay all overpayments and to inspect the documentation for money they are told they owe. 

Following the adverse publicity, the insurance company has suspended its above suit to allow more time for the physicians to show they were not overpaid.

State Office of Recovery v Streight
Utah Supreme Ct.

Streight was injured in an auto accident and was placed on Medicaid because she had no medical insurance.  She sued the other driver and won $107,000.  The attorney took $37,000 as his contingency pay.  The state then wanted its money for the Medical funds disbursed.  They ordered the entire $107,000 to be paid to them.  The attorney argued he should be allowed to keep his money.  He lost.  He did not follow the rules of the state and must disgorge the fee. So both the injured party and the attorney got zero.  This is much more fair than if the attorney got paid but the injured got zero.

Klay v PacifiCare
11th Circ  

This is a continuation of the huge suits by multiple state medical associations and physicians against the HMOs on RICO charges.  The case remains consolidated in Miami.  This part of the case the 11th Circuit ruled that the HMOs may be sued under RICO and there is no reason to stay litigation of the nonarbitable claims until the arbitrable claims are finished. 

In this case Cigna has become the first of the insurers to settle with "specialty providers", the non-physicians.  They have agreed to a $11.55 million fund for the providers and a $7.5 million payment to the attorneys.   

Physicians v Aetna

The physicians of Cincinnati and northern Kentucky had sued Aetna for antitrust in 2002.  Aetna and the physicians have settled the suit for a payment of $22.5 million to the physicians over three years plus a payment of $1.5 million for the attorneys for the physicians.  This is the second settlement.  The first was with Humana for $100 million and $6 million to the attorneys in that case.  There are still two more insurers in the loop who are attempting to play hardball but will probably also cave later.  They are Anthem and United.   

Vine St. Clinic v HealthLink
Ill. App. Ct.  

 Illinois has a fee splitting ban under the Practice Act of 1987.  The act forbids the dividing of fees with non physicians in their practices.  HealthLink charged a 5% administrative fee to the clinic and in 2002 this changed to a flat fee.  In March 2002 the Illinois Attorney General declared the percentage fee was illegal and void and that all fees paid should be returned.  The lower court found the flat fee to be legal.  The upper court found that fee based was simply a percent fee in a different format.  The court also said no fees needed to be returned since the physicians did the illegal act and the court will leave the parties where they found them.  The decision will be appealed.   HealthLink has collected over $1100 million in illegal fees from the Illinois physicians that they may keep.  Top 

Fraud and Abuse


TAP has agreed to pay $150 million to settle claims that it conspired to violate the Prescription Drug Marketing Act.  It did this by causing the sale of drug samples of Lupron.  This is to settle private individuals and insurer suits that they were bilked out of millions of dollars.  The money will go to the insurers. 

US v Gambo

Gambo Healthcare, a dialysis company, has settled with the government for $350 million.  This follows a whistleblower suit filed in 2001.  The charges were that Gambo paid physicians to refer patients and falsified billings.  A division of Gambo, Gambo Supply, pled guilty to fraud and is permanently barred from Medicare.  

    US v Texas Specialty Physicians

The FTC had won a price fixing case against the IPA but is planning to appeal the judge's finding that the FTC needed to establish a defined market to determine the IPA's market power.  The IPA may also challenge the price fixing ruling.  

US v Loma Linda 

 The faculty of Loma Linda has agreed to pay a settlement of $2.2 million for false billing to Medicare.   Top 


Patients v Non-Profits

The judge in this case has ruled, as others have, that the claims against  Sutter Health overcharging non insured patients be dismissed on the Federal level.       

People v Los Angeles County
DC Ca.

A federal judge has ruled that the Los Angeles Board of Supervisors has the power to close the trauma center at Drew/King Hospital.  The judge refused a temporary restraining order. 

Block v Florida Hosp Assn. 
Superior Ct.

In Florida a state judge has stated that the hospitals must follow the recently passed Proposition and release all requested records of adverse actions that could have led to patients. 

Sanger Clinic v Presbyterian Hospital

Sanger Clinic v Presbyterian Hospital in Charlotte have agreed to a settlement.  Presbyterian originally an ads that were untrue and eventually was sued by Sanger when they  did not stop the untrue ads.  The settlement is the running of 1/2 page ads stating that Sanger provides high quality care and Presbyterian "regrets any suggestion to the contrary that may have been implied through its earlier advertisements."        Top  


US v Solis, MD

Dr. Armando Solis and his medical assistant were charged by a federal grand jury in Miami of illegal distribution of OxyContin and other controlled substance..  They were also charged with fraud on Medicaid.  In the past two years Solis' license number was used in almost $10 million in Medicaid drug costs and of that about $1 million was for OxyContin.  Dr. Solis faces up to 20 years in prison on one charge alone.   

Texas v Maynard, MD

Dr. Daniel Maynard of Dallas, Texas has been indicted for prescribing drugs without a medical purpose.  He has been investigated for eleven patient deaths.  In 2002 he wrote 55,000 prescriptions and was the  highest prescriber of diazepam and the second most for Tylenol with codeine in the state.      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.