February 15, 2008 Recent Legal News









Gomes v Hameed
Oklahoma Supreme Ct.

A family of a patient who died after being resuscitated during a code blue sued the hospital.  The two physicians who participated in the code, one a private practitioner who happened to be there and the other a resident working in the hospital, were promised immunity if they would testify against the hospital.  The did and the plaintiff lost.  The plaintiff then did what any good attorney would do reneged and sued both physicians.  The Supreme Court said the independent practitioner could not be sued due to the Good Samaritan Law but the resident could.  The case was then remanded to determine if the plaintiff could go back on the word not to sue.  This should be a lesson to all physicians never to trust an attorney.  

Demming v Denk
NY App Ct.

The court stated that the med mal case against a plastic surgeon could go forward since there was no statute of limitation limit due to the continued treatment and surgery of the patient by the physician. The incident was from the final stage of a five stage breast reconstruction surgery. The same did not hold true for the hospital since the hospital would only be used when the physician took the patient there and the physician's being the chief of plastic surgery of the hospital did not make him a hospital employee. 

Sorensen v Barbuto
Utah Supreme Ct.

Although not a med mal case, the case is here since it involves some of the same principles.  The physician made a boo boo.  The patient was suing another for personal injury and the physician talked to the attorney for the patient's adversary without permission of the patient.  This is a breach of confidentiality and may be intentional infliction of emotional distress.  The patient won at the trial against her PI opponent and then sued the physician.  The lower court stated that Sorensen had put her medical condition on record by suing the PI case but the upper court said not so. This is a good case for physicians to learn from.  One does not speak to anyone about a patient without the patient's consent.   

Halley v Superior Ct. Of King County
Ca Ct App

Halley sued Hanford Nursing Home for negligence and elder abuse.  The nursing home said that they had to arbitrate since the wife had signed the admissions papers and therefore agree to the arbitration.  The court disagreed and state the wife did not have the authority to bind the patient to the agreement based solely on a spousal arrangement. 

Clay v Kaiser

 The Court ruled that Medicare has preempted California law in arbitration.  Clay sued for wrongful death and the Court ruled that arbitration as stated in the Kaiser Senior Advantage contract took precedent over the California rule that the arbitration agreement must be prominently displayed.      Top


Mead v Salem Hosp

The patient had a misdiagnosed stroke and was discharged from the ED.  He sued under EMTALA and lost since it is not a med mal statute and the plaintiff did not show he was treated any differently than any other person treated wrongly in that facility.  The patient came in for neurological symptoms and was treated for a calf strain.

Preston v Meriter Hosp
Wisc Ct App

The plaintiff's mother was hospitalized at 28 weeks gestation and delivered a child who was not resuscitated and died.  The hospital was sued under EMTALA but the plaintiff lost since the mother was hospitalized the child is deemed hospitalized.  EMTALA does not apply to hospitalized patients.      Top  


Gottlieb v Alaska
Alaska Ct App

A physician was criminally convicted of Medicare fraud and theft of pharmaceuticals.  The original criminal court also convicted the physician of first degree theft since he had lied on his application to the state and therefore was not a licensed physician in the state and was taking money for medical services was a theft.  The court of appeal tossed the last issue since licensure is an exclusive matter for the medical board and not the court.        Top


Rikabi v Nicholson
5th Circ

A physician sued the chief of staff of a VA hospital for retaliation after being terminated.  The lower court gave summary judgment for the chief of staff and this was overturned by the 5th Circ.  A Muslim physician complained to the hospital HR department regarding discrimination following the 9/11 attacks.  Immediately after the complaint was filed the chief of staff ordered that no more consults were to be given to the physician but instead should have the patient transported to other facilities.  The physician had retained full privileges.  The chief of staff stated that his order was due to an altercation on hospital grounds that required the physician to be removed from the premises.  Of course, this happened several months prior to the complaint.  The chief had also given different reasons for his actions at different times.

Levy v Clinton Hosp
Ohio Ct. App.

The court ruled that the hospital by changing from the old radiation machines to the linear accelerator could justify a closed department.  The new radiologist could use the accelerator but the old radiologists had to use the old machines which had been removed from the hospital.  The court went on to state that the medical staff bylaws were not a contract since there was no meeting of the minds.  The hospital had to follow the bylaws but the physicians did not have to practice at the hospital.  Apples and Oranges.  The physicians did not get any hearing rights and there is arguments on both sides of this.  The physicians were not terminated from the staff but only had there privileges removed and not for a medical quality reason.  What this does do in a practical sense is to allow the medical staff to take sides and pit physician against physician and against the hospital.  This may cost the hospital some of its physicians and all of its radiation therapy.  Since the physician is not bound to practice at the hospital according to the court, they shouldn't.    

Salamon v Our Lady of Victory Hosp
2nd Circ

The lower court dismissed the antidiscrimination suit by the physician against the hospital because she was an independent contractor and not an employee.  The upper court found that the hospital exerted control over the physician and so it was possible that she was an employee.  She had sued a physician who just happened to by the CEO for sexual discrimination and then received negative reports.  The court found the the hospital's QA program had detailed requirements as to when and where her work was to be performed some of which were for hospital money and not medical quality. To trial.     Top


Patients v Scripps Hosp

In a class action suit a settlement was reached in regard to the hospital billing uninsured patients an average of 412% more than insured patients.  The settlement was for all those who were charged the full price since 2002 to get a 35% discount on their bill.  The hospital also promised to maintain discount pricing and compassionate collection procedures for uninsured, boost its charity discounts for moderate income uninsured patients, offer financial counseling to uninsured patients and provide more information about policies to uninsured patients.  The total loss of money to the hospital billing could be up to $72 million.

Northeast Georgia Cancer v Blues

The Center has filed a law suit against the Georgia Blues to allow them to see patients under the any willing provider law.  Some of the physicians in this group are not in the HMO and for what ever reason want to be.  The patients who were seeing the omitted oncologists now have to drive several hours for care.  The Blues state that any willing provider laws do not mean HMO and only mean PPO.

Jacobs v Kaiser Health Plan
9th Circ

Jacobs has bulimia and Kaiser did not have the requisite physician to treat the patient.  Under ERISA and her Kaiser plan, the plan was sued for not allowing the patient to see an out of plan physician. Kaiser strung her along and never provided promised care as she continued to deteriorate and finally she was hospitalized for treatment in a Kaiser unapproved program.  Kaiser refused to pay. Kaiser not only lost the case but was so egregious they also had to pay the patient's attorney fees.          Top  


US v Merck

Merck has agreed to pay a fine of $218 million to the feds and an additional $181 million to 49 states plus DC.  If one adds interest to this the grand total is $671 million.  The accusation is that Merck used unfair pricing to change the government more than it should as well as paying physicians to use the drugs Zocor and Vioxx.  This is a whistleblower suit so a former Merck sales manager will get $68 million of the award.  

Prime v Kaiser

Prime Healthcare has filed eight suits against Kaiser for Kaiser's non payment of $25 million in care for its members seen at Prime EDs. There is no contract between the two entities.  As 0part of its suit it claims Kaiser is pressuring hospitals to call Kaiser when one of its members comes to the ED.  This is against federal law.  Prime also claims that Kaiser pressures the hospitals to release the patient to Kaiser prior to completion of stabilization, also against federal law.     Top  


Chino Valley Pathology v Doctor's Hosp
Ca Ct App

Chino Valley Pathology sued its hospital Doctor's Hospital of Montclair for money due it for the anatomical and clinical professional charges for Medicaid patients.  The trial court gave summary judgment for the hospital but the court of appeals reversed stating that there was ambiguity in the contract and the ambiguity precluded summary judgment.  To trial to resolve the issue.

Cascade Health v PeaceHealth
9th Circ

In an antitrust action, the 9th Circuit continued the case against PeaceHealth for its antitrust actions against Cascade.  The Oregon Supreme court must redecide a technical aspect of continuing or breaking with its prior decisions in this matter. 

US v Bayonne Hosp

Bayonne, NJ Medical Center went bankrupt owing the government $2,5 million for illegal billings.  The hospitals was purchased by IJKG LLC which agreed to pay the above fine plus interest.       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.