February 15, 2010 Recent Legal News





Peer Review



US v Christ Hospital

A whistleblower, Dr. Harry Fry,  started a lawsuit for illegal kickbacks against Christ Hospital and the Health Alliance of Greater Cincinnati over paying physicians for reading EKGs.  The suit may come to close to $100 million and make the retired cardiologist a very rich man.  This should make hospitals wake up and take criticism seriously when they overlook paying some but all for a service or not allowing all physicians participate in a hospital service.  Hospitals have been doing this for years and may now stop playing favorites.

US v Roaring Fork Valley IPA

The IPA had about 80% of the physician in the area and attempted to set prices for the group at higher rates.  The contracts with insurers had an automatic COLA every year.  The group discouraged individuals from making separate contracts with the insurers.  The group would only accept contracts with insurers if at least 80% of the primary physicians and 50% of the specialists agreed to the contract.  The consent decree bans the group in conducting collective agreements.  It must also terminate all contracts reached using "price fixing tactics", notify the FTC on all offers or counter-offers  and notify the FTC prior to collaborating with physicians.  

Peoria Day Surgical Center v St. Francis Hosp
CD Ill

In an antitrust case the surgical center will be allowed to pursue its case against the hospital.  They contend that the hospital illegally manipulated the an exclusive contract to force the center out of the market.  The court date is scheduled for March.  The hospital offered the area's larges employer lower rates if they signed an exclusive contract with them.  The problem was the payments were still higher that the Center.

Capener v US
9th Circ

Dr. Mark Capener of Nevada was accused of medical fraud.  The judge dismissed the charges and stated the Nevada federales made errors in their case.  Dr. Capener sued the government for attorney fees.  Guess what?  He lost.  The courts stated the errors did not rise to the level of misconduct.   

US v Briceno

Miami resident Dulce Briceno was sentenced to 63 months in jail for her part in the Detroit scam of billing Medicare for services not medically necessary or not performed.  Ms. Briceno was the manager ot the Detroit clinic and was paid according to the amount of money taken in.  The patients were referred to the clinic via kickbacks to non medical people.     Top


CMA v California

The California Medical Assn. and the state's anesthesiologists are suing the state to prevent nurse anesthetists from doing anesthesia without physician supervision.  It is interesting that the rule that allowed states to opt out of the Medicare rule requiring physician supervision came from Bill Clinton, whose mother happened to be a nurse anesthetist.  I am sure there is no connection!  To date, seven rural states have opted out.  I have worked with nurse anesthetists and found them very capable but on occasion needed the oversight of a physician.  One of the nurse anesthetist I worked with back in the early 1970s even did spinal anesthesia and did it better than the physician.

Joseph Riley Anesthesia v Stein
Fla Dist Ct

 The court ruled that the non contracted provider of HMO patients may not balance bill patients while it attempted to get the money from the HMO.  The Group was an exclusive provider of anesthesia services at Florida Hospital.  Florida Hospital had a contract with the HMO. It is in the Florida statutes to since it was known that there was a contract the Group may not collect from a patient, only the HMO. It was known since the HMO reimbursed the Group partial payment.      Top


Pal v NY University

The physician, a fellow in bariatric medicine, was fired after calling patients scheduled for the following week and suggesting that they cancel due to unsafe conditions at the hospital and telling her complaints to her supervisors.  The physician claimed she was fired in violation of the state whistleblower law.  The hospital sued for summary judgment.  The court ruled against the hospital on the important parts of the case and against the physician on the request for continuing her pay and wanting a jury trial.

Green Clinic v Finley
La Ct App

The Court agreed with the Clinic that the fact the physician transferred his share of the clinic to his professional corporation prior to entering competing practice as a hospital employee was against the spirit of the anti compete law and allowed the reasonable two year limitation stand.  

Spine, Sport & Pain Med v Nolan
Ind Ct App

In a case of absurdity, the clinic attempted to stop Nolan from practicing in a city where until he told the Clinic he was going the Clinic had no office.  Several days later they opened an office there and then told Nolan that his restrictive covenant would not allow him to practice there.  The case made it up to the court of appeal, another absurdity.  The Clinic obviously had no leg to stand on.  This was pure malice.

Fleming v Yuma Regional
9th Circ

The physician sued the hospital for not allowing him special needs and getting rid of him because he had sickle cell anemia.  He sued not under the ADA but under Section 504 of the Rehabilitation Act.  This allows anyone to sue not just employees.  The Court allowed the suit to trial.    Top


  Lebron v Gottlieb Memorial Hospital
Illinois Supreme Court

In reviewing a bad baby case now in the deposition phase, the Illinois Supreme Court for the third time ruled that caps on non economic damages are the purview of the judges and not the legislature.  This overruled the caps in the state and will send physicians away from the state to practice in a less harsh environment.  About 30 states have passed laws regarding caps and the courts have invalidated the caps in about 11 of 27 states that have heard the arguments.  The legislatures of some of those 11 states are attempting to satisfy the judge's objections.  The court also invalidated a law that made apologies by physicians inadmissible. One of the reasons for the multiple overrule is that the legislative act had a nonseverability clause.        Top

Peer Review

Summers v Lovelace
NM Ct app

Dr. Summers was a practicing internist and psychiatrist at the Lovelace Sandia Health System. The physician was permanently suspended for using sexually explicit language which could be imminently dangerous to patients. He went through the judicial review process and lost.  He then sued for defamation.  The court said that the hospital may not have made reasonable efforts to obtain the facts prior to the action.  The hospital focused on one patient and not the totality of the actions that led to the action.  The case against him rested on a telephone conversation and notes by a case manager with no attempt to contact the patient or the case manager.  The case may proceed to trial as HCQIA does not preclude the action.  Sounds like a poor hospital attorney and a railroad by the hospital.  

Topper v Midwest Div.
Mo Ct App

In a case that has been percolating for several years the neonatal physician finally won against the hospital that illegally terminated him.  The court of appeal affirmed the lower court and allowed both compensatory and punitive damages.  He was slandered and the hospital lied and used false statistics to make it seem he should be terminated.  When he left the neonatal nurses went with him. The Director of quality improvement was the bad guy in this case costing the hospital big bucks.   Top


Texas v Mitchell
Trial Starting

The trial against nurse Anne Mitchell and another nurse who tattled to the Texas Medical Board about what they believed was substandard medical care by a physician at their hospital.  She is being charged with misuse of official information, a third degree felony in Texas. Nobody wants the state to proceed with the case except the physician and his friend the sheriff who made the arrest.  This is truly a miscarriage of justice that is only been rivaled in recent memory of the case against the physician in New Orleans whose patients died during Katrina. The jury took one hour to decide the charge was bogus.  The nurses accused and with lost jobs immediately sued the hospital, county and officials for violation of due process and first amendment rights.  I hope they get a ton of money.       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.