January 1, 2004 Recent Legal News








Fraud and Abuse


Catsoulis v New York State Dept. Health
NY App.

The physician was accused by the medical board of gross misconduct in one patient, lied on two hospital applications and fraudulently changed medical records. The physician's own expert testified that the use of two separate anticoagulants along with aspirin was substandard.  This led to the patient bleeding and to his death. He also did not monitor the patient during the patient's 21/2 week hospital stay.  He lied regarding criminal convictions on his application and changed the medical record after the patient died to make it look like others were to blame.  The revocation stands.    

Bonnell v Medical Board of California
California Supreme Court

 The Supreme Court ruled that the Medical Board must follow state law.  This is new for them.  Bonnell was accused of fouling up two autopsies and went before an ALJ who recommended no discipline.  The Board agreed but the Attorney General petitioned for a thirty day delay for reconsideration of the ruling.  The Board acquiesced and did reconsider.  Bonnell sued the Board.  The law is that there can be only a 10 day hiatus to reconsider.  The 30 day hiatus was void and so since nothing occurred within the ten days no action against Bonnell is allowed.   Top  


Raleigh Gen'l Hosp v Caudill
W. VA. Supreme Ct.

The hospital sued the wife of a former patient, now deceased for the bill.  The lower court and the Supreme Court both said the wife was not liable for the debt.  The debt was for non-physician hospital expenses.  The hospital sued the husband for $1516.48 plus interest.  The hospital continued the suit against the wife after the husband died.  The courts stated the state law is that the spouse is liable only for reasonable and necessary services of a physician and not the hospital.     

US v Mercy San Juan Med. Ctr.

This Carmichael, California, hospital is the apparent reason for one of the latest EMTALA regs. They have been accused and paid a fine of $25,000 for admitting a patient and then transferring the patient without any screening or stabilization to avoid the EMTALA rules. The patient was transfused at the Sutter Roseville hospital and admitted with an emergency medical condition. EMTALA does not apply to those admitted and then transferred unless it is done to avoid EMTALA liability, according to the recent new regs put out by the feds.

New England Health Care Employees Union v Yale Hosp.

The union has sued the hospital for their collection tactics of overcharging patients and then using severe tactics to collect.  This is obviously being done to discredit the hospital while the union attempts to organize their employees.  This is the reason the unions are right with used car salesmen as well thought of people and the amount of union employees in the country has diminished.  This suit is bogus since the union has no stake in the matter.  The suit will be tossed by any knowledgeable judge. 

Silver v UPMC

 Dr. Silver, a former pathologist at University of Pittsburgh Medical Center, has sued the center for falsifying reports stating cancerous tissue was benign.  Also she states that there were systemic errors which made patients go through unnecessary tests for financial gain.  She was fired after after complaining about the deficiencies to both the center and then to outside agencies.  The pap smears were read as normal and then later were found to be abnormal  The center sent a memo not to advise patients or their physicians about errors unless they asked. If any of these allegations are proved true, the hospital pathology department will be forced to leave and there will be pressure on the CEO as well.  The American College of Pathologists states that it is common practice to electronically place a pathologists name on a negative Pap report even though he/she has never seen it. 

Dople v VA Hosp

The VA Hospital in Fredericksburg, Top


Brandes v North Shore Univ. Hosp.
NY App

The plaintiff sued a hospital for malpractice and moved to compel the hospital to produce its rules and regulations, bylaws, policies and procedures for nine separate hospital departments.  This was denied at both the trial court and the court of appeal.  The court stated that the demands were too broad and overly burdensome.  The court also disallowed the request for the physician's applications as being part of peer review.  The court further disallowed the production of the fatal laproscopic cholycystectomy tape since it was not material and necessary.

Robinson v Jewish Hosp 
Kent. Trial Ct. Filed

In an interesting case, the hospital has been sued for malpractice for a MRSA infection that eventually killed him.  They claim unsanitary conditions permitted the bug to exist.  The hospital stated the allegation was absurd.  MRSA is prevalent in many institutions in the area and around the country.  The wife was told by a nurse that the husband died of MRSA while waiting for a heart transplant.  There was an autopsy but the hospital won't give the report to the wife.  I think the plaintiff will have a tough time winning this case.    

Dobran Dayton Clinical Oncology
Ohio Supreme Ct.

Dobran has a melanoma and had a lymph node removed for DNA testing.  The node was sent to California for the test in a frozen state.  The node thawed and made the test useless.  He is suing for fear of a disease returning.  The lower court has tossed the case since there is nothing in Ohio law to allow the suit to go forward.  The court of appeals reinstated the suit since there is a good chance there may be a recurrence.  There is an issue as to why the attorney did not use the lost chance theory.

Greenway v St. Joseph Hosp.
Filed Fla.

The widow of a patient who died during robotic surgery is suing the hospital.  Major blood vessels were lacerated during a robotic nephrectomy.  The physicians have already settled the suit.  The hospital is being sued for allowing inexperienced physicians to utilize the equipment.  At the time of the accident the physician had worked on a pig, cadaver, three nephrectomy and one radical prostectectomy that left the patient incontinent.    

Chapman v Univ. Kentucky

In an unusual case Chapman has filed suit to prevent the University of Kentucky from collecting any money from the surgery to remove a towel left in his abdomen.  The amount is $17,621.  The suit is to stop the University from collecting from the patient or any third party.  He had sued the hospital for the malpractice but lost due to sovereign immunity, a bad decision.

Cohen v Johns Hopkins
Not Yet Filed

Cohen, a two year old boy, died at the hospital from an apparent overdose of potassium in his IV.  The hospital has accepted responsibility for the error.  There may have been an miscommunication between the hospital and one of its pharmacies.  

Eastburn v Regional Fire 
Cal. Supreme Ct.

The California Supreme Court has ruled that 911 agencies are not be sued, period.  The case was a non-response by the 911 who put the caller on hold numerous times.  The call was regarding a 3 year old who had been electrocuted while taking a bath.  She was revived but has severe brain injury.  The only way 911 may be sued is if they are guilty of bad faith or grossly negligent neither of which were true in this case.  

Tapp v Fusia
Fla. Trial Ct.

Fusia, the physician who was the urologist who cut the aorta and vena cava during a robotic nephrectomy causing death, has been found guilty of malpractice in another case.  This was a case where Fusia operated on a man for kidney stones and the patient developed urine leakage into the abdomen.  The patient died after the second surgery to close the leak from a pulmonary embolus.  The physician will pay $750,000.

Juliana v Shands
Fla. Supreme Ct.

The Florida Supreme Court ruled for the plaintiff in a case where a 2 month boy was left brain damaged after surgery.  The award was and still is $10.83 million.  The case was brain damage after a problem with the heart pump used to fix the patient's valve.  

Schramm v Easton Hospital
Penn. Filed

 Schramm died unexpectantly five years ago while in the hospital for a seizure.  He had a high amount of Digoxin in his blood at the time of the death. Apparently, Charles Cullen, the nurse who has been accused of killing up to forty patient by the use of Digoxin was caring for the patient.  The family of the dead patient filed a law suit against the hospital in 2001 for negligent care.  They will now sue the hospital again but his time for failure to investigate and covering up the incident.    

Owens v Rhode Island Hospital  
RI Supreme Ct.

Owens sued for an injury to his sciatic nerve and left arm while immobilized for 12 hours in what was supposed to be a two hour operation.  He lost in the trial court but won the appeal for a new trial because the trial judge refused to let his expert testify.  

Perry v Monadnock Hospital
New Hampshire Not Yet Filed

A teenager was seen in the ED of Mondnock Hospital, given a throat culture, diagnosed with the flu and sent home.  The next day she was in coma and eventually died from bacterial meningitis.  This was after the state had issued a warning about the disease, especially in that portion of the state.  The hospital states the patient had no fever or other signs of meningitis.  If true, the hospital will win the case.

Acuna v Turkish
New Jersey Trial Court

 A judge has ruled that the physician counseling a patient who is seeking an abortion does not have to discuss anything beyond the medical matters.  The physician was sued for not stating that the fetus is a living being. This sounds like a case to make a point regarding religion and not medicine. 

Whitten v UC Davis

The family of the plaintiff is suing the University of California, Davis for allowing a former autopsy assistant to keep the head of the patient in his shed for over 13 years.  The patient, who died of colon cancer, donated his body to science.  The suit is for intentional infliction of emotional distress and negligence.  The University is attempting to distance itself from the suit by stating that the activities were not part of the normal scope of duties.      

Johannesen v Salem Hospital
Ore. Supreme Ct.

  The plaintiff's wife died one week post partum from pregnancy induced hypertension.  He apparently settled with the physicians but wanted t sue the hospital for malpractice and amend his complaint to add punitive damages.  The Supreme Court in 1951 stated that malice is a legal wrong committed with a bad motive or so recklessly as to be in disregard of social obligation.  The Supreme Court stated that this fell into the definition and allowed the amending of the complaint to allow punitive damages.  Top


Sharma v Cook County
ND Ill.

Sharma, an anesthesiologist, developed ovarian cancer in 1995.  She was treated but took off work from 1995 to 1999. She then wished to come back to work but was died privileges.  She sued and the court allowed most of the disputed questions to go to trial.  Summary judgment was not appropriate for any question that are in dispute.  

Thornton v Trident Med Ctr.
SC Ct. App

Thornton left his employer prior to the four year commitment.  He refused to return any incentives received from the Center.  The Center requested arbitration and Thornton refused.  Thornton stated that since his contract did not affect interstate commerce the Federal Arbitration Act did not apply.  The court disagreed and reasoned that the Act applied since the recruitment involved interstate commerce. 

Fenje v Feld

Fenje was dismissed from his residency due to lying on his application.  He had failed to list a residency program where he was dismissed after 12 days.  He also did not tell the new hospital that he was involved in a law suit with the old hospital over his dismissal.  The new hospital was justified in dismissing the physician and the hearing he received was adequate.

Pound v Lee Memorial
Mich. Ct. App.

Pound was dismissed from working in the ED after coming to work with nail polish, cosmetics and visible female undergarments.  He sued for gender discrimination and lost since grooming codes do not violate the Michigan Civil Rights Act. 

Hospitals v California

With only several days before the new nurse ratio law is to go into effect, the California hospitals have filed a suit about the use of the words continuous compliance.  They are requesting an injunction against the law until the issue is resolved.  Although I believe this is a bad law and will lead to hospitals having either to pay fines or close wards, the hospitals knew about this months ago and there is no reason to ask for an injunction now.  The continuous compliance wording, the hospitals believe, means that if a nurse goes to the bathroom or on break, and this causes the ratio to not be met for the short time, they will be non-compliant and have to pay a fine.  Knowing the nurse's union, they will probably report the ten minutes to the state.  However, the law state's the state must find them out of compliance and the state has no money to police the hospitals.   Top 


New Jersey v Cullen

Charles Cullen, a nurse, admitted to killing between 30-40 patients with medication (Digoxin) since 1987.  The patients were in Pennsylvania and New Jersey.  He was charged on one count of murder and one count of attempted murder but more may follow.  He refused a lawyer and pled guilty. He worked in a total of ten hospitals.   

The last employer stated that the nurse's record appeared clean since there had been no criminal convictions or discipline in the states he held his nursing license.  When he checked on his references he only learned the dates of employment and nothing about why he was let go.  After the nurse had been fired and applied to another hospital the last hospital blew the whistle in spite of the possibility of being sued for giving a bad recommendation.  He had been reported to the Pennsylvania Nursing Board by a previous hospital. Those reports are not public records.  

Sengstock v Kilgore

Kilgore is chief of Neurology at Baptist Hospital in Jacksonville, Florida.  Sengstock is a neurologist in the Department who was being groomed for the top spot but left.  Sengstock claims that Kilgore did not bill correctly for services provided by Sengstock and therefore Sengstock was denied incentive pay.  The agreement had a non-compete clause for 24 months in the county.  It also says that a breach of contract by either party will not be a defense against the non-compete clause.  Sengstock went into practice in the county and stated he was doing this in spite of the restrictive covenant. Kilgore is seeking an injunction.         Top 


Cal. Chamber of Commerce v State

The California Chamber of Commerce has sued the state to overturn a lower court verdict.  The lower court refused to allow a proposition on the next general election ballot to overturn SB2, the last minute law by the legislature and ex-governor Davis to force business to either provide health insurance to its employees or pay into a fund that would purchase the insurance.  The Chamber had collected more than enough valid signatures for ballot consideration.  The lower court ruled the ballot measure invalid since there wasn't a short statement of each page of the signature page describing the  intent of the measure and the attorney general summary did not give a full description of the original law.  The latter item could be changed in five minutes and the former is probably harmless error.          Top


Raich v US
9th Circ.

A three judge panel of the 9th Circuit has ruled 2-1 that the federal Controlled Substance Act does not apply to intrastate commerce.  Intrastate growing and use of marijuana is governed by state law.  California's law allowing marijuana to be used for medical purposes is not controlled by the Act. This is the first federal court to rule in this manner and the first to rule on the issue since the US Supreme Court ruled last year that medical necessity is not a bone fide defense in federal court.  The 9th Circuit decision would probably be appealed to either the full court or to the Supreme Court which almost routinely overrules the liberal 9th Circuit.        Top 

Fraud and Abuse

US v Tenet & Frye

Tenet and its subsidiary hospital Frye Regional in Hickory, North Carolina have agreed to a consent decree with no payments.  The decree states that Frye's CEO helped form a PHO that illegally fixed physician prices.  The FTC also announced they will be filing against the PHO and about 10 physicians who the feds believe are central to the price fixing.  This is the first price fixing case involving a hospital as a co-conspirator with the physicians.   

US v Metropolitan Hospital of Grand Rapids

The Michigan hospital has settled with the Feds for $6.25 million to settle charges about payments to physicians that violated the Stark anti-kickback regs.  This was a whistleblower suit.         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.