February 1, 2006 Recent Legal News



Death With Dignity


Peer Review

Medical Marijuana


Ohio Hosp. & Med. Assn. v Ohio
Ohio App. Ct.

The court certified for a class action a suit filed in 1999 against the state for failing to monitor the solvency of a state Medicaid HMO.  After the Medicaid HMO became insolvent the physicians and hospitals lost monies due.  The case now goes to the trial court for a trial on the facts.  

Class Action v Tenet

 In a class action for securities fraud Tenet agreed to pay $215 million to close the case.  D&O insurance will pay $75 million, former CEO Barbakow will give $1 million, former COO Mackey will pay $500,000 and the remainder will be paid out of the company funds.  

Sunnyside v Clark County

Two hospitals in southern Indiana sued the counties they want to build in.  The counties passed a law that no more hospitals could be built in their counties.  Each county already had one hospital that did not want competition.  The counties lost.  The judge wrote the counties do not have the power to prohibit competition.  Indiana has no 
CON process and the private hospitals can proceed to build.  This is the second time in the past year the judges have ruled against the county trying to stifle competition.    


Degani v Community Hosp
ND Ind.

There was a liquidated damage provision in the contract between anesthesia and the hospital.  The clause was for the physicians to pay the hospital damages if the contract was breached.  The court ruled that the language of the contract stated that the damage was not automatic and the physicians do not have to pay.  Another great hospital attorney goes down in dust.

Community Hospital v Mattar 
Ohio Ct. App.

A physician and hospital arbitrated their contractual grievances.  The arbitrator overstepped his authority by stating the hospital decision to terminate the physicians was arbitrary.  The issue before the arbitrator was the breach of the contract by the physician and the ability of the hospital to terminate the physician immediately for that breach.  The court ruled that the physician did breach the contract and could be terminated immediately and without severance pay. 

Springer v Henry
3rd Circ.

A physician was terminated after writing five memos criticizing the policies.  None of the statements in the memos were false.  The physician sued for illegal discharge and won in trial court.  The appeals court confirmed the trial court since unless the speech is knowing or recklessly false it is protected by the First Amendment.  The employer did not have immunity when her actions in termination were reckless or intentionally malicious.

Clinch v Heartland Health
Mo. Ct. App.

One surgeon sued another for tortious interference with business for making statements regarding plaintiff's complication rate.  The lower court granted summary judgment to the defendant but this was overturned by the Court of Appeal.  The reason was those statements could be defamatory and needed to be heard by a jury.  Since the defendant did not inform the hospital of the source of his information the statements could reasonably be viewed as intentions interference with the business between the hospital and the plaintiff.         Top

Death With Dignity

Gonzales v Oregon
US Supreme Court

The Supreme Court ruled in a 6-3 decision that the feds power under the Controlled Substance Act does not allow the Attorney General of the United States to exceed the state's police power in the regulation of the physician's actions under a legitimate state police power ruling, absent Congressional authority and legality.  The Court stated that the Oregon Death With Dignity law was legal and the feds couldn't interfere.  This is an interesting decision because those who voted in favor of state's rights were the liberal judges with several swing votes.  The conservative justices were more swayed by the issue of physician suicide than the state's rights issue. 

Oregon's Democratic Senator Wyden states he will put a one year blanket hold on any attempted legislation to overturn the state's physician assisted suicide law.       Top 


Magana v Doe

In a settlement in Norther California that did not allow the hospital name to be used, there was a payment of $52 million.  This structured settlement is worth $6,250,000 in present value.  The 21 year old student had a congenital deformed jaw repaired.  The anesthesiologist was assigned to the case by the hospital and gave too much beta blocker which led to asystole not picked up timely and brain damage.  To make matters worse the anesthesiologist had not had privileges at the hospital for ten years.  When I look at the patients experts I see some people that I recognize as only working for hospitals and slanting all their testimony.  It is obvious by the settlement that the defense knew that their witnesses would not stand up to scrutiny and gave this huge settlement.  The plaintiff will receive $27,000 per month, increasing 3.8% per year until death.  He will also receive an immediate payment of $2,952,672 immediately plus the mother will get $150,000 for the future wrongful death. 

Purvis v Moses Cone Hosp.
NC App. Ct.

In North Carolina an expert was not allowed to testify in a med mal case since he received his information about the hospital on the internet four years after the incident.  The law states that the expert must be contemporaneously familiar with the local standard of care.  The expert did not meet the contemporaneous component.       Top

Peer Review

McLeay v Bergan Mercy Health
Neb. Supreme Court

McLeay, a surgeon, over a period of several years was investigated by an ad hoc committee on eight cases.  He eventually had a monitor assigned to him except for a small amount of minor cases and a laundry list of cases that were supposed to be given to him.  That never happened.  He eventually was reported to the NPDB and later suspended for a case that happened years previously.  Also mentioned were the eight cases and some others never before mentioned.  He was again reported to the Bank.  He sued for defamation and multiple other causes.  The hospital defended itself by the shield of HCQIA.  The trial court gave the physician over a million dollars.  The appeals court overturned due to HCQIA. The Supreme Court did not agree.  They stated there was nothing in the record to overturn the testimony of two physicians that stated that McLeay did nothing wrong.  This meant HCQIA may not apply.  They remanded that for a trial on that issue.  They stated that due to the statute of limitations the defamation claims for the NPDB reports were stale. If the trial court found that HCQIA applied then the damages must be reversed as a matter of law.

Pardo v General Hospital
Mass. Supreme Ct.

A physician in a teaching hospital told his chief he was gay and that his partner had HIV.  Several years later after decreased responsibilities he was let go.  He went through a peer review hearing and again lost.  He then sued for sex discrimination.  He wanted peer review records of other physicians to show how he was discriminated against.  The lower court allowed the discovery but this was then overturned and upheld by the Supreme Court.  Peer review records in the People's Republic can only be obtained for bias but this is only if a member of the committee has not acted in good faith.

Sheth v Wunderlich
Ill. App. Ct.

The Department of Medicine Chair recommended to the Department that Dr. Sheth be suspended.  Dr. Sheth sued since the bylaws stated that the Department Chair and not the Department had to summarily suspend.  He lost since the recommendation was tantamount to doing it himself.         Top

Medical Marijuana

San Diego County v California

The Board of Supervisors have filed a lawsuit against the state to overturn the Medical Marijuana law that was passed by the citizens.  The rationale is the law is against federal law and an international treaty.  I am not sure the county has standing to challenge the law.  San Diego County is the only county that has not gone along with the state medical marijuana ID program. 

Several days later San Bernardino County also filed an almost identical suit against 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.