January 15, 2003 Recent Legal News





Peer Review


Fraud & Abuse


Any Willing Provider

Board Certification

Hospital v Health Plan


Antonacci v City of Chicago
Ill. Ct. App.

The plaintiff's estate sued the city for their emergency personnel not performing an EKG or defibrillation on the patient.  The City moved to dismiss due to government immunity.  The trial court agreed but the Court of Appeals didn't.  The Appeals Court stated that the Act does not immunize the government from their medical personnel negligently or wrongfully prescribing a treatment that causes harm or from a negligent or wrongful act or omission in administration of a treatment after a correct diagnosis is made.  The personnel did diagnose a heart attack but failed to get an EKG.  The court remanded the case back to the trial court for more information to be forthcoming.

Pipe v Hamilton
Kan. Supreme Ct.

What is a significant chance of survival?  The Kansas Supreme Court stated that any chance is significant.  The case involved a woman with intestinal obstruction operated on and the re-operated several days later for intestinal gangrene.  The husband when told she had only a 5-10% chance of recovery decided to stop care.  This was done.  The patient died. The husband filed a malpractice suit. The plaintiff's expert testified that the attending physician failed the standard of care when he did not do other tests to determine if the condition was terminal.  The trial court dismissed the case but the Supreme Court said that 10% is more than trifling and is therefore substantial.  New trial.

Swanner v Bowman
Texas App. Ct.

The Swanner family sued for murder, civil conspiracy, emotional distress, wrongful death and negligence. After heart surgery at Plano Hospital the patient was on a respirator.  He deteriorated and the family agreed to allow him to die by removing the respirator.  The patient did not die and it is alleged that the patient was injected with a substance that killed him. There was an autopsy by the hospital pathologist even though the family requested one done by the coroner.  The trial Court found that since all depended on negligence of a fatal injection a bond was required per Texas law and the filing of an expert report.  Neither had been done.  The Appeals Court agreed.  They discounted the notion that the charge of murder overruled the act of negligence.  The action was really wrongful death.  This plaintiff needs a different attorney.   

Patients v Hospitals  
Sacramento Trial Cts.

Multiple patients have sued multiple Sacramento area hospitals for hospital acquired bacterial infections.  Interesting one lawyer has filed most of the suits.  This solo practitioner has gotten his name in the paper with these suits.  The ambulance chaser also intimates  that hospitals do it on purpose since they make more money when people get hospital acquired infections. He is also attempting to make more money by stating that since the infections have been around for a long time it is not just malpractice and not covered under the 1975 California tort reform.  If the hospitals truly do not follow proper infection control procedures, they should be sued and lose. (See below)  However, if they follow adequate procedures and people get infections, there should be no liability.  All patients know or should know that when they enter hospitals there is always a chance of a hospital acquired infection. 

As an aside the Palm Beach Garden Hospital was cited by regulators in the past for too many surgical infections.  The JCAHO then did their through investigation and found no problem.  Now the health officials are again after the hospital for the high infection rate. The hospital has been sued in the past two years by 106 patients for their infections post CABG.  In this there were twenty deaths.  The hospital continues not to monitor their post-op infections as evidenced by a health department report that showed that out of 12 surgical patients with infections in November five had been readmitted and none of those had any review as to the cause.  They again were cited for this failure.

Jane Doe v Regina Hospital

A woman set off the metal detector in Regina, Canada.  No metal was found.  Several days later she had an x-ray and a 12 inch retractor was found in her abdomen. This was removed the following day but she is seeking compensation for the negligence.  

Catalano v Moreland
NY App. Div.

A malpractice plaintiff suing a physician for malpractice for not obtaining informed consent and not naming the hospital was not entitled to a copy of the bylaws. These were not material and necessary in the determination of whether or not the physician obtained informed consent.         Top


Imbler v PacifiCare
CA CT. App.

Imbler had prostate cancer and PacifiCare refused to pay for proton beam therapy.  Imbler sued in state court and PacifiCare moved for arbitration.  The Trial Court refused the request.  PacifiCare appealed and the Appeals Court agreed since PacifiCare failed to comply with a state law that requires a prominent placement of arbitration language.  This does not include the same type font or non bolding even if it is just above the signature line.  The suit proceeds.

Pagarigan v Aetna
Ca. Ct. App.

The plaintiff was in an Aetna  Medicare + C plan. The enrollment form did not mention arbitration. Arbitration was in the member handbook until 1996 when it was removed.  It was placed back in an unpaginated 100 page amendment to the book.  The estate sued in state court for Aetna denying prompt care.  Aetna applied for arbitration and the trial court agreed with the arbitration.  The Appeals court overturned since the McCarran Ferguson Act was inapplicable to Medicare patients.  

Milton v Kaiser

The plaintiff went to Kaiser with a tight shoe injury to his right first toe.  He was told he had gout and given anti-gout medications.  Two days later he returned with worsening of the condition.  He was now told he had cellulitis and given antibiotics.  The next day he was seen and admitted for IV antibiotics, had a debridement by a podiatrist and a vascular consult ordered.  This consult was done in another two days and the patient, a security guard, has never had a healed wound.  The plaintiff stated there was an untoward delay in diagnosis and treatment.  Milton offered to settle for $2250,000.  Kaiser refused and lost $623,668.

Ledesma v Kaiser

 In April 1999 the patient went to Kaiser for abdominal pain.  She was diagnosed as irritable bowel syndrome and returned with symptoms becoming progressively worse despite meds eight months later. The symptoms now were abdominal pain, weight loss, rectal bleeding and a change in bowel habits.  Again she was diagnosed as irritable bowel syndrome. The following month she had severe abdominal pain and went to the ED.  The weight loss and anemia had become worse.  She had a CT scan which showed an enlarged liver and intestinal wall thickening.  The CT was misread.  For the next 16 months the diagnosis remained unchanged. Then she returned to the ED and was sent for the first time to a GI specialist.  The colonoscopy revealed a large tumor and surgery showed hepatic metastasis with a two year life expectancy.  The mother of three children wanted $1.7 million for loss of income, future care and general damages.  Kaiser offered $550,000.  She received $1.098 million with $598,732 in economic damages, $250,000 in non-economic damages and $250,000 loss of consortium.   This case borders on gross negligence.         Top


John v Marshall Health Servs.
Texas App. Ct.

John, MD was recruited by Marshall to move his practice from Brownwood Texas to Marshall, Texas.  During negotiations John had three concerns. One was if the community was large enough to support his practice.  Marshall sent him a report showing a large community but lied since they knew the report to be false.  His practice was not as successful as it was in Brownwood and he sued to get out of the contract. The trial was deadlocked but the judge entered a directed verdict for the hospital.  John appealed and the appeals court ruled that fraudulent inducement is not precluded by a merger clause in the contract.  The boiler plate language did not hold and John was entitled to a new trial.  

Harris v Provident Life
2nd Circ

Harris, an anesthesiologist, purchased disability insurance from Provident.  Later she became asthmatic due to  latex allergy and after attempting to continue to work as an anesthesiologist quit.  Provident began paying her the disability benefits but required monthly affirmations of her inability to work.  Provident then hired their own specialist and that specialist stated that Harris was not allergic to latex but to dust.  Provident then cut off the benefits.  Harris went to Johns Hopkins and Mayo who agreed with Provident.  Harris then sued and won in trial court summary judgment on breach of contract but not on the breach of the covenant of good faith.  The 2nd Circuit agreed with Provident on all and required a trial to determine the factual issues involved.     

Shatkin v Kaleida Health
NY App. Div.

A physician was denied a hospital renewal and reported to the NPDB.  He sued the hospital but lost at all levels since he never challenged the hospital by going through administrative appeal.  This is required in New York for a wrongful termination lawsuit.      Top


Adams v Bd. of Chiropractic Exam'rs
CA Ct. App

Adams pled no contest to twenty two counts of false claims but stated he did not know his employee had submitted them.  The Board then accused Adams of filing false claims based on his no contest plea.  In an appearance before a ALJ the Board presented no evidence except the plea.  The ALJ stated in a footnote that there was no clear and convincing evidence that Adams knew about the employee's deeds.  The ALJ recommended 45 days suspension plus probation.  The Board did not follow the ALJ and suspended the license for at least two years.  The only evidence was the ALJs report.  The Board eliminated the footnote.  Adams lost the mandamus and appealed to the Ct. of Appeal.  The Court of Appeal reversed and stated the Board had abused it's powers by imposing so severe a penalty.  The Court stated that a revocation must be based on more than speculation that the chiropractor knew of the fraudulent billings.  The Court remanded back to the Board for a more appropriate penalty.        Top

Peer Review

Peyton v Johnson City Med. Ctr.
Tenn. Ct. App.

Peyton sued the medical center in state court for $10 million and a permanent injunction after they revoked his privileges.  The trial court granted summary judgment for the medical center prohibiting monetary damages under HCQIA.  Peyton appealed.  The Appeals Court ruled that Peyton had failed to show by a preponderance of the evidence that the center did not comply with the Act.  The Court ruled that the hospital had shown that they acted in the reasonable belief that the action was in the furtherance of quality health care.  The Court also ruled that the hospital had made attempts at finding the truth of the matter.  There had been interviews with employees and  lengthy hearing process.  The Center also followed its bylaws by giving timely notification to Peyton.  The Court also found that the initial summary suspension and later revocation were not important in the safety of patients.

Missouri Joplin v St. John's Med Ctr.
Mo Ct. App

Joplin and St. John contracted for Joplin to provide radiology services.  After multiple disputes Joplin sued St. John for breach of contract.  St. John filed a counterclaim stating Joplin had not participated in the hospital's quality program.  Joplin requested documents from the hospital and the hospital alleged they were privileged under peer review.  The Missouri peer review statute only discusses patient's records and the trial court ruled for the discovery of the records.  St. John appealed and the Court ruled the hospital was plying both sides.  They asserted the privilege when it was their interest to do so and not assert when it was in their interest to not assert.  Joplin got the documents.

Beverly Enterprise v Ives
Fla Dist Ct.

Ives filed a wrongful death action against Beverly Enterprises for negligent care and treatment.  Ives wanted documents in discovery and Beverly fought due to the self-critical nature and quality assurance of the documents.  The District court quashed the discovery since all documents relating to quality improvement and not just those originating in a peer review committee are protected.    

Plummer v Comm. Gen'l Hosp. of Thomasville
NC CT. App.

An anesthesiologist lost his exclusive contract and sued to get hearing rights.  The hospital won on summary judgment and appeal since the doctor never lost his privileges just is exclusive contract.  They are not the same thing.  One is the privilege and the other is the ability to provide the services in a closed hospital staff.  

Wheeler v Methodist Hosp.
Tex. App. Ct.

Wheeler had been disciplined by Methodist and agreed to not discharge patients until he obtained a consultation from another physician.  He violated the agreement and after a telephone conversation with the acting chief of staff, he resigned.  He was reported to the NPDB reporting the resignation and that he had been suspended.  He sued for defamation but too late for the Texas statute of limitations.  However, since the report had been republished to third parties and those republications fell within the statute, Wheeler was allowed to go forward with the suit and discovery on whether the report was false. 

Spindle v Sisters of Providence in Wash.
Alaska Supreme Ct.

A physician refused to give a medical staff credentials committee complete information and was refused staff as his application was retired as incomplete.  Spindle sued and of course lost on summary judgment. The Supreme Court also ruled that his antitrust action was premature since he never gave his information to the hospital.          Top


MDs v Cigna

Cigna has been sued by physicians in the consolidated class action in Miami and by a group of physicians in Illinois.  Cigna settled with the Illinois group and Judge Moreno in Miami issued an injunction against the settlement.  Now a panel of federal judges in Los Angeles will hear and decide who has jurisdiction.  The hearing will be on January 28, 2003 and the decision rendered several months later.  

In the interim, the Illinois judge who presided over the Cigna settlement stated that he believes the appellate court will allow the Illinois settlement to stand and will throw out the class action status of the Miami consolidations. In Florida Judge Moreno would not allow the addition of Oxford to the litigation at this late date.      Top

Fraud & Abuse

US v Panshi, MD

Dr. Surinder Singh Pansi pled guilty of three counts of MediCal fraud in Orange County, California.  He had also been previously convicted of fraud in New York and spent five years in prison.  He and his associates took over $10 million from California.  The associates include 13 laboratories that billed but did not do  tests.  Some of the labs were ordered to pay up to $160,000 in restitution and two people running the labs were sentenced to prison.  Dr. Pansi faces 11-16 years in prison. 

A NATIONAL FIRST!  A hospital has been accused and pled guilty of a criminal act for fraud.  United Memorial Hospital in Greenville, Michigan pled guilty of wire fraud for billing for pain procedures that were not medically necessary.  The hospital knew about the procedures and ignored the complaints since the procedures added to the hospital bottom line.  The penalty can be $500,000 and up to 5 years probation.         Top


McMeans v Med. Liabilities Recoveries
CA Ct. App.

Patients injured in car accidents sued and won money from the people that hit them.  The treating hospitals then placed liens for their usual and customary fees, which was usually above that paid by the insurance companies.  The plaintiff argument was that the hospital had been paid what they were entitled to under the medical insurance contracts.  The Appeals Court ruled that the amount a plaintiff can recover for medical damages is limited to the amount paid or incurred. The hospital can not lien for more than it is owed.  There was in this case a dispute as to what the hospital was owed so trial was appropriate and summary judgment denied.        Top 

Any Willing Provider

The US Supreme Court will decide a Kentucky case regarding this issue.  The Kentucky law allowing any willing provider has passed muster in the District and the 6th Circuit.  The insurers are not happy with this and are taking it to the Supreme Court.  Their argument is that it would increase costs.  Other states with this law have stated that it does not increase costs.  If the Court backs Kentucky it would mean that the states are being given much more power in determining the health care of their citizens.  Last year the Supreme Court ruled that the state may impose a independent review if requested by an individual who has been denied heath benefits.        Top

Board Certification

Daniel v Amer. Bd. of Emerg. Med.

Emergency room physicians who did not go through a residency program in emergency medicine are not allowed to sit for the Boards.  They sued the Board and two hospitals  for antitrust and restraint of trade.  The hospitals sued asked for summary judgment.  One was given summary and one was not on appeal.  There was a question of fact as to the state action immunity doctrine.        Top 

Hospital v Health Plan

Coast Plaza Doctors Hosp v UHP Healthcare
CA Ct. App.

The hospital sued for reimbursement for services provided to the plan's patients.  There was no contract between the two.  The Court of Appeal let a breach of contract go since the patients had signed their rights over to the hospital.  The hospital also sued for unfair competition and the Court also allowed that to go.  The hospital had showed that the plan attempted to make the hospital transfer their patients against EMTALA regulations.        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.