January 1, 2017 Recent Legal News


Peer Review and Employment







Thomas v Archer
Alaska Supreme Court

The patient came to the ED of a hospital and saw a physician.  The physician recognized a possible premature pregnant delivery and arranged for a transfer to another more equipped hospital.  The patient said they need to the get pre-authorization prior to the transfer and the physician said she would call the insurer.  The patient was transferred and the physician did not do what she promised.  She eventually did it 6 months too late and the payments were denied so the patient had to pay and she sued the hospital and the lying physician.  As with most cases like this the patient got screwed.  The high court said an oral contract without consideration is not valid and the hospital and physician were allowed summary judgment on most but not all claims.  The claim of promissory estoppel was allowed as the physician promised and they relied on that promise to their detriment.  I hope the physician has pay personally.        Top

Peer Review and Employment

EEOC v St. Joseph's Hospital
11th Circuit

A nurse on the psychiatric ward had hip surgery and afterwards need a cane to walk any distance.  She was warned about the cane as it could be used as a weapon on the ward.  She produced a physician's note to allow her to use the cane on the ward.  Two years later the hospital told her she could no longer use the cane and gave her 30 days to apply for other hospital positions.  She did apply for 7 jobs of the 700 available.  She was qualified for three of the seven but was not interviewed for any and was dismissed.  the EEOC sued on the nurse's behalf.  The lower court ruled the nurse had a disability but he hospital was reasonable in not allowing her to use her cane and competition for the job was allowable.  The circuit court said the hospital had a best qualified applicant policy and therefore giving the position to the less qualified nurse was not reasonable. 

Palepu v Bondi
Pa Superior Ct

 A nurse reported a physician for making disparaging comments to her to her supervisor.  The supervisor notified the physician and the chair of the surgery department.  The chair told the peer review committee and was sued for his part since he "knew the report was false".  The court found the plaintiff could produce no evidence that the tattling physician knew the report was false.  Case dismissed.  

Murphy v Advocate health
Ill Ct App

The physician had his privileges suspended earlier for his actions in the care of a patient.  The physician sued for a TRO at that time and that case had not been adjudicated as it is up on appeal.  The hospital, after an external review, again suspended his privileges and he again sued for another TRO.  The lower court ruled the second TRO was out of order.  The court of appeals ruled the physician did not have to show a likelihood of success for the TRO and the TRO was legitimate until the case was decided on its merits.

Nahas v Shore Memorial
NJ Superior Court of Appeals

The surgeon was jailed for obstruction and misleading a healthcare fraud investigation and then sued for reinstatement to the hospital where he practiced for ten years.  During that time he was on peer review multiple times and finally had his privileges revoked.  The hospital said it was immune from suit due to HCQIA and the courts agreed.  Case over.

Tshibaka v Sernulka
4th Circuit

The physician for various reasons had his privileges revoked after he was alleged to break an earlier agreement regarding his actions.  He sued for racial discrimination and the court found he could not find any similarly situated black physicians who were treated differently.  The court also found HCQIA protected the hospital.  This latest accusation was for a sexual harassment complaint by a patient care technician (whatever that is) and she is not entitled to absolute immunity but may be entitled to qualified immunity and the lower court needs to determine this.

Winger v Meade District Hospital
D Kan

The physician was accused of substandard care in two patients.  An external peer review board asked him to respond but he did not.  His temporary privileges were terminated and he sued.  He said the hospital denied him due process and deprived him of his property rights.  The court said ferget bout it.  Case over in summary judgment.       Top 


Newborn v Christiana Psychiatric Service
Del Superior Ct.

A patient went to a psychiatrist for treatment.  They entered a consensual romantic relationship which ended after several months.  The psychiatrist continued to prescribe meds for her and eventually gave her a med to replace Prozac.  She became emotionally distraught and committed suicide.  The medical examiner investigated the death and reported the psychiatrist to the state who investigated.  The state sent two formal complaints to the medical board.  Since the psychiatrist was now also dead the case ended until the patient's estate filed suit.  The issued a subpoena to the state for their investigative files and the defendants moved to quash as they are protected peer review files.  They are not as the state was not acting under the medical board or other peer review organization.  Most of the files are discoverable.

EID v Loyola University Medical Center
Ill Ct App

The hospital refused to produce subpoenaed records in a case they were sued for malpractice.  The records were produced by the risk manager on the orders of the CMO, a member of the peer review committee.  The court said since the records were for the committee and the committee used them in their deliberation they were protected.

Guitierrez v Santa Rosa Memorial Hospital

Several months prior the court found the plaintiff failed to allege facts to support an EMTALA claim.  Now, in a first amended response, she alleged the ordering of tests and waiting for the results without adequate oversight was not enough under EMTALA.  The court said this was possible failure to screen and the case could go on.   

Holy Name Medical Center v Horizon Blue Cross blue Shield
Superior Ct. NJ

A Bergen, New jersey, judge has ruled that three of the six actions filed by three hospitals against Horizon's Omnia plan for leaving them off the preferred list could go forward.  He let go forward one claim regarding the insurer's marketing plan and another is a breach of contract.  The Omnia plan is lower costs for those who use tier one hospitals.  The hospitals want to know the criteria for choosing tier one.  Horizon will not say but may be forced to in court.     Top


AHA v Burwell

HHS has stated they can not meet the court ordered targets to reduce the 658,000 Medicare claim appeals that are backlogged.  They have asked the court to reconsider the order again.  they made the  same arguments in the court case but the court rejected them at that time.  They want to do it on their own time, never.          Top


US v Savino

Dr. Thomas Savino of Staten Island, New York, has been indicted for accepting kickbacks from the infamous Biodiagnostic Laboratory Services of New Jersey.  The indictment states he took over $5,000 in bribes to refer patients to the lab for tests.

US v Cardinal Health

 Cardinal Health has agreed to pay the feds $44 million to settle claims that it made errors in its dealings with the DEA.  This is the final step in a settlement that started in 2012 when Cardinal agreed to had its DEA distribution suspended for two years for not doing its due diligence.  This resolved the civil penalty phase.   

US v Bay Area Sleep Clinic

 the clinic and Qualium Corporation and Amerimed along with their owners Anooshiravan Mostowfipour and Tara Nader have agreed to pay the feds $2.6 million to settle claims they charged for sleep tests and medical devices against the law.  The clinics were not credentialed. The clinics are now dis-enrolled and can not re-enroll for three years. This was a whistleblower case.       Top


House v Burwell

Not to be deterred by the postponement of the case by the court, the attorneys for some Ocare patients have filed to intervene in the case.  They want to defend the legality of the cost sharing reductions or subsidies.  They fear that Trump will not defend the case and the subsidies will go away.

Woods v Lynch
WD Tenn

In another overreach by the feds they attempted to correct a mistake they made 14 years earlier and the court said tough.  Two physicians had voluntarily surrendered their DEA licenses 14 years earlier due to substance abuse.  They both had their licenses reinstated and had hospital privileges.  The DEA 14 years later attempted to tell them they needed a waiver to practice in a hospital.  The court said nice try DEA but you lose.        Top


UCLA Medical Center v Employees

Many employees in the UCLA Medical Center looked up Kenye West's  personal medical information while Kenye was in the hospital.   Many have been fired and more to follow.

Patients v East Valley Community Health Center
To Be Filed

About 65,000 patients of the California facility had their information hacked following a ransomware attack.  How the hackers got access is not known.

Patients v Community Health Plan of Washington
To Be Filed

In this case 400,000 people had their information put at risk due to hackers and the lack of protection.

Patients v LA County
To Be Filed

LA County has started to notify 756,000 people that their information was hacked last May.   

Patients v New Hampshire
To Be Filed

The state HHS was hacked and the information of 15,000 people was posted on social media.  They believe the hacker was a patient in a psychiatric hospital who was allowed access to a hospital computer.  How this was allowed is mind boggling.        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.