February 1, 2016 Recent Legal News


Peer Review and Employment






Collip v Ratts
Ind Ct App

A mother sued after the daughter died possibly from a drug interaction.  She sued the NP who was caring for the daughter as well as the physician who had a collaborative agreement with the NP.  He never saw the patient.  The MD screwed up.  He was supposed to review 5% of the NP charts but didn't.  He did do a limited review of the NP notes which showed problems with narcotic prescribing.  He suggested she attend a narcotic seminar but did not follow up.  The court found the MD had an agreement with about a dozen other NPs and did not follow up with them either even though he was being paid.  He had a duty and it was foreseeable that patients would suffer harm if he did not do his oversight.  

Davis v Nassau Community Hospital
NY Ct App

In an act of lunacy a physician allowed a patient to drive herself home from an emergency room after being given an opiod painkiller and a benzodiazepine intravenously.  She had a MVA and injured another who sued the hospital.  The hospital let the patient go without warning her of the effects of the meds.  They have a duty to the third person parties.

Brown v Gupta
Mich App Ct

The patient had colon surgery followed by a perforation and a second surgery with complications.  She sued the surgeon and the hospital.  The surgeon was not an employed physician.  The lower court found the hospital could be liable but the appellate court fond otherwise.  There was no ostensible agency since the hospital made no action nor any representation to the contrary.

Nurnberg v U. Michigan Health Service

The patient, who is acting as her own attorney, was bitten several times by a cat owned by her sister in law.  She claims that she had to wait 12 hours to be admitted for treatment of osteomyelitis of the wrist, cellulitis, rashes and acute renal failure.  She also claims some of her physicians did not treat her adequately causing prolonged severe pain, weakness and disability.  I wonder why she is acting as her own attorney.

Patients v Bayside Health
To Be Filed

Bayside Health screwed up in their disinfection processes so 293 patients who had colonoscopies have been notified that they are at risk for Hepatitis C and HIV.  Bayside has since purchased and is using different colonoscopy equipment that require a different approach to disinfection.  There was a problem in the hospital of not training their personnel adequately.  This was found by a state inspection.

Booze v Community Behavioral Health

The hospital has been sued by two families of patients that were injured by alleged hospital errors.  The Booze family is suing for wrongful death after a family member killed herself in the Fresno, California, hospital.  The other case is Archuleta who the family states died after another mental health patient with a violent past attacked the patient while at the hospital causing a heart attack and death.  The state did investigate and found no problem with the handling of Booze but did find the hospital failed to protect Archuleta.  The same attorney is handling both cases.

Patients v J&J

Johnson and Johnson has agreed to pay $120 million to settle between 2000 and 3000 malpractice suits related to the use of its mesh in vaginal surgery.  They still have another 42,000 suits.

Patients v DuPont

The chemical maker faces 40 years of trials starting in April 2017 regarding cancer from a chemical used to make Teflon.  There is no class action on this issue.  DuPont claims that 90% of the litigation is for high cholesterol and thyroid disease, not cancer.  

Fewins v CHS/ Community Health
ND Texas

The plaintiff took her 6y/o son to the ER with complains of paid in his left leg after falling.  They had no medical insurance.  He was seen and x-rayed and treated.  The next day he was seen for the same thing in a different ER, diagnosed with an infected hematoma and admitted for a month.  The idiot attorney sued for not providing a medical screening.  The court found easily enough that indeed he had a screening, he was not treated differently than similarly situated people and that he was not found to have an emergency condition that need stabilizing prior to discharge.  I hope the attorney took a huge bath on this case.        Top

Peer Review and Employment

Breda v McDonald
D Mass

The physician worked part time in the ED of the VA and was terminated from his position.  He resigned after he was notified of the VA decision and so was labeled as a resignation in lieu of involuntary action.  The termination was for deficient patient skills.  He sued for lack of due process and the other usual stuff.  He lost on all since the Civil Service Reform Act preempts all the claims.  He also failed to exhaust his administrative remedies.   I hope the attorney that took this case on contingency lost his shirt.

Boffa Surgical Group v Managed Healthcare Associates
Ill App Ct

Two surgeons on staff of the hospital were excluded from the hospital managed care network and sued.  The lower and the appellate court both ruled against the surgeons.  The surgeons did not include factual details in their case not did they state how there was restraint of trade.  The surgeons had privileges at the other 21 nearby hospitals.  Another bad job of attorneying (sp?).

Haight v NYU Langone Medical center

A NP claimed harassment by a supervisor, a hostile work environment and disability discrimination.  The NP complained several times to the HR which eventually fired the coworker due to her illegally accessing the NP medical records.  Several months later the coworker was hired as a vendor and was back.  This caused the NP allegedly to have repeated fainting spells and nausea each time she saw the coworker.  The NP was terminated a year later and was diagnosed with PTSD.  The court granted summary judgment to the hospital on some of the claims but not for a hostile work environment.  The hospital did not do enough soon enough to preclude exempting itself from liability.  The disability discrimination claim also stayed since they did not do a reasonable accommodation.

Babchuk v Indiana University Health
7th Circuit

Dr. Babchuk had an exclusive contract to perform radiology at the hospital.  His privileges and his exclusive contract were terminated due to not dictating a report for eight days on an ultrasound.   He sued for reporting him to the medical board and the NPDB and this blemished his medical license.  He, of course, lost in summary judgment in both the lower and appellate court.  He presented no evidence that his career was hindered by the reporting.  Babchuk also though he had a property interest at Tipton Hospital based on the bylaws.  He doesn't. 

Kim v Mercy Springfield Hospital

A jury awarded Dr. Hyewon Kim $720,821 in compensatory damages and another $800,000 in punitive damages for wrongful termination.  She said she was fired after raising safety concerns about Drs. Gregory Nanney and Dr. Steven Braun two radiation oncologists hired by the hospital.  Dr. Kim was the medical director of the hospital radiation oncology department.  She complained that the two engaged in numerous violations of medical standards and practices and patient safety issues.  After reporting the two physicians she was called to a meeting with the accused and reprimanded for reporting concerns.  After more complaints she was relieved of her position as director for not being a positive presence.  She was later discharged.  Nanney has since been discharged from the hospital but Braun is still possibly practicing there.  Nanney and Braun are part of a second suit filed by another physician, Dr. Viran Holden, regarding his termination.  His lawsuit is still pending.  

Colantonio v Mercy Med Center
NY App. Division

 This case, which as gone on for years, may be coming to an end.  Dr. Colantonio was removed from the hospital after be accused of being a disruptive physician.  He claimed defamation based on false statements.  The hospital claimed immunity since the statements were in a Credentials Committee meeting.  Since this is not a hearing the hospital was denied summary judgment by the lower court.  The appellate court said the hospital was entitled to qualified privilege under HCQIA since the physician had not shown malice.

Wharton Physician Services v Signature Gulf Coast Hosp.
Texas App Ct

The former hospitalist group sued the hospital for a violation of the non compete clause when it hired two physicians previously employed by Wharton within six months.  They wanted liquidated damages.  Instead they got a bill for attorney fees.  The court ruled the contract was enforceable but not the non compete clause since there was no additional compensation for it.  Even if the non compete was enforceable the hospital was not liable since the new group and not the hospital hired the physicians.

Pac. Kidney and Hypertension v Kassakian
D Or

The group requested a TRO against the nephrologist who accepted a position with a competitor.  There was a non compete clause.  The court granted the TRO regarding soliciting patients from the original employer but denied the TRO regarding her joining the new group.  The reason is the nephrologists are in short supply and patients would have to wait months to see one.

Murphy v Tuality Healthcare
D Or

The physician sued his employer hospital for terminating him in retaliation for fulfilling a six week obligation to the military.  He is a member of the National Guard.  The hospital moved for summary judgment since he was not an employee.  The court ruled that he was an employee since in reality he was even though the contract said he was not.  

Helfer v Associated Anesthesiologists of Springfield

Helfer worked in the group for almost twenty years and became more surly later on.  He also complained to third parties about the group's business practices.  The group called him in and warned him to go through the group with any grievances.  He did but the group did not act and so he reported them to CMS.  He was terminated and then sued for retaliatory discharge.  The court denied summary judgment since a reasonable jury could find he was terminated due to his contact with CMS and the group was upset since he caused so many audits.        Top


Cutler v HHS
United State Supreme Court

The Court denied the review of the DC Circuit decision tossing the challenge to Obamacare under a religious exemption to the individual mandate.  The law has an exemption for religious accommodation but Cutler does not qualify.  He is an non-observant of his religion.  He had insurance but that was removed due to Obamacare.  

California Nurses Association v National Union of Healthcare Workers

The San Francisco Business times reports that the CNA has filed suit to request arbitration of its disputes with the affiliate.  The CNA wants to either merge the affiliate into it or to end their relationship.  It wants out of the arrangement and wants the NUHW gone.

Montanile v Board of Trustees of the National Elevator Health Plan
US Supreme Court

In an interesting case that will cause insurance premiums to skyrocket, the high court ruled that the plaintiff who was injured in a car accident, sued and won $500,000, spent the money on medical expenses, attorneys and his daughter does not have to repay his plan for their medical expenses.  There was a provision in the plan contract that required the plaintiff to repay the plan any monies expended if he own money against the wrongdoer.  This 8-1 decision reversed the 11th Circuit.

California v Insurers

The plaintiffs want Anthem, Blue Shield, Kaiser and Health Net to be classified as insurers and under the Department of Insurance and not as a health plan.  Under a health plan the four pay a corporation tax and an annual fee based on business volume.  If the are insurers they would pay a 2.35% tax on premiums.  this would bring billion more dollars into the state coffers for the treatment of Medicaid patients.  Governor Brown wants the status quo so as to not raise premiums.  The four state they offer medical services only through restricted provider networks and do not reimburse enrollees for medical expenses as well as require providers to be responsible for the financial risks.  To date the courts have ruled against Anthem and Blue Shield.

FCC v Prospect Medical Group

The Culver City, California, hospital was sued under an FCC ruling that made it harder to dial patients on their cellphones without their express consent.  They used an automated dialer to call a patient on her cell to collect a debt without her express consent.  Penalties can range from $500 to $1500 per call.  They can call once without penalty even if no one picks up.       Top 


Royer v Our Lady of the Lake Hospital
La Ct of App

In an interesting issue the plaintiff sued for fraud instead of malpractice.  The patient was told to go to the hospital by his primary.  He did and was admitted for a MI.  He did not go to the hospital recommended by his physician but went to the nearest hospital.  His claims for med mal were dismissed since the attorney did not submit hem first to a medical review panel.  The fraud claims were for misrepresenting the nature of the hospital's services.  He thought the ads were fraudulent.  Of course, he never relied on the ads and the physicians were not responsible for the hospital ads.  Another loss.

Patients v Merck

Merck has agreed to pay another $830 million ($8.3 billion total) to settle lawsuits related to Vioxx from a decade ago.  Part will be paid by insurance.  There are still some suits still outstanding.

US v Tri-City Medical Center

The Oceanside, California, hospital agreed to pay $3.2 million to settle allegations that it violated the Stark Law by having illegal financial contracts with physicians and physician groups.

US v Terry

Dr. John Terry of Wellsboro, Pennsylvania pled guilty of writing fraudulent prescriptions for Oxycodone.  A strawman also pled guilty as did the real user of the med.  Terry agreed to surrender his medical license as part of the plea.

Dannenhoffer v Architrive

Dr. Robert Dannenhoffer, a pediatrician, was the CEO of the Rosenberg, Oregon, hospital who was fired.  He is suing as a whistleblower to get his job back and money.  He claims he was fired for reporting $10 million in fraudulent Medicare claims to physicians.  He stated that there was a violation of Stark where Umpqua Medical Group set up a compensation plan that paid its doctors more every time they prescribed certain drugs and procedures of Medicare patients.          Top


Sweden v Dr. Doe

Dr. Doe ( Sweden has privacy laws) was arrested for drugging woman with sedative laced strawberries and locking her up in a soundproof bunker.  He then thought better and along with her went to a local police station to turn himself in.  He wanted to find a partner.  He is accused of rape but denies that charge.  He has been declared mentally fit to stand trial.

Toronto v Kunynetz
Discipline Hearing

Dr. Rod Kunynetz, of Toronto, Canada is up on disciplinary charges for rubbing his penis against two women.  He said he could not have since his paunch would have prevented it.  He was examined by a local urologist in front of an investigator.  The investigator testified that the urologist had Kunynetz strip from the waist down and his penis was not buried under his belly girth and measured 2.5 cm.  the urologist then chemically induced a semi erection and his penis was visible beneath his abdominal overhand.        Top


Patients v Brigham and Women's Hospital
To Be Filed

An unauthorized person accessed the files of over 1000 patients at the hospital via an employee's credentials and hacking the email account.  The hospital says that no information has been misused.

Patients v Centene
To Be Filed

Centene is looking for six hard drives with PMI of about 950,000 people. The company is involved in Medicaid managed care.  It will be providing credit and healthcare monitoring for all.  It is attempting to buy Health Net for $6.8 billion.  It can afford the monitoring.

Patients v Benjamin
To Be Filed?

Compare the number of patients involved between this and the case above.  You have to love electronic records.  The attorneys do.  Here, 1300 patient paper charts were stolen from Dr. Benjamin's office and some have been recovered.  He reported the loss to the OCR.        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.