January 15, 2008 Recent Legal News




Medical Malpractice


Denney v Blue Cross

David Denny is 13 years old and has severe brain damage since he was 4 months old.  His physicians state that he needs a nurse to help with his daily needs including feeding formula via a feeding tube. About two years ago Blue Cross cut the funding for the nurse as no longer medically necessary.  The family did not go through the formal review process and went right to a law suit.  The company sought and was awarded the ability to have arbitration instead of judicial resolution as allowed in the policy.  The family while awaiting resolution of the dispute put David on Medicaid and now all Californians pay for David's 40 hour a week care.  The family has continued to pay the $2907 per quarter insurance premium to Blue Cross during the dispute.  Blue Cross continues to pay for David's physician visits, meds and any hospitalizations.   

Blue Shield of California
Ca Ct App

 The California Court of Appeal reversed a month old decision that allowed consumers to have a class action suit against Blue shield for their canceling health coverage after a claim is filed.  The insurer now gets a rehearing on the issue.  

Vets v VA System
USDC San Francisco

A Federal judge will rule if the VA system must provide immediate mental health treatment for vets who suffer from stress disorders and are at risk of suicide.  The Court did rule that the VA must provide two years of healthcare to vets after discharge.  The VA argued that it was only required to provide as much care as the VA budget allowed in any year.  The Judge found that the VA special court could only hear individual cases and not systemic problems that now plague the worthless organization.    Top


Hospitals v Dept of Community Need

About 60 hospitals have banded together to file suit against the Department of Community Need.  The Department had the audacity to believe hospitals did not control patients and that physician owned ASCs could also provide the same or better care than could hospitals at a lesser cost and more efficiency.  The hospitals want the ASCs to file a CON which would delay or possibly be blocked by the political might of the hospitals.  The Department ruled that general surgeons who focus on abdominal surgery are single specialty which allows in the silly State of Georgia an exemption from CON laws.  A turf battle, pure and simple.    

Patients v Banner Health
Ariz. Supreme ct.

The Arizona Supreme Court has denied hearing to the patients and insurance company that had them as their insureds who were charged full retail for services at the hospital.  There was no contract between the insurer and the hospital.  The statistics were that only 2% of the patients paid retail and they usually only received 34% of billed charges.   Banner stated that this is the third time it has successfully defended itself and it believes it is a misrepresentation of the insurance company to its insureds that they can get the contractual rate with the system.  

US v Lafayette General Hosp

Louisiana's Lafayette General Hospital


US v Eatough

The government believes Dr. Phillip Eatough of Rumson, NJ, is overprescribing narcotics.  They have scoured all his records and have found three patients that state they sold the meds ordered for them.  The problem is there is no standard for the amount of narcotics one person may need to control pain.  This is shown in the Joint Commission's pain control standard.  In this case the physician has already been investigated by the state found nothing since they closed the file without any criminal or administrative action.   

US v Schneider

Dr. Stephen Schneider and his wife are in jail awaiting trial on conspiracy, unlawful distribution, health care fraud and illegal monetary transactions.  The prosecutors state the pair are linked to 56 patients who died from overdoses of painkillers.  A separate civil federal lawsuit will be filed by the Pain Relief Network stating the Controlled Substance Act as applied to physicians is unconstitutional.  

Verma v Jefferson Hosp.
ED Ark

A rehab physician sued the hospital for antitrust when the hospital entered into an exclusive contract with a company whose medical director was not board certified.  The court gave the hospital a summary judgment since the physician did not have standing to sue.  There was no injury to competition due to the contract and there was not evidence that there would be a lower quality of care by a non board certified practitioner.  The court also stated that the physician and the hospital had different product markets such as "rehab care planning". With different markets there could be no concerted refusal to deal.

Radiological Physics v Hanford Hosp
CA Ct. App

The hospital won a summary judgment in a breach of contract issue.  There was a non compete clause between the entities that was too broad and therefore unenforceable.  The hospital had signed a contract that they would not compete for a 25 mile radius of the hospital for 50 years.  Twenty years later the hospital opened a new cancer center within the radius and the original physicians went out of business. The court ruled that California law forbids any contract which restrains trade unless there is a sale of goodwill or the dissolution of a partnership.   

Fu v Baptist St. Anthony
USDC Texas   

Dr. Herbert Fu sued the hospital for breach of contract after he was forced to resign from the Anesthesia group which he was a member.  The chief of thoracic surgery at the hospital wrote a letter to the group describing Dr. Fu as Dr. Fu up.  Dr. Fu was forced to resign from his group and sued the hospital for $75,000.  The hospital settled just prior to trial for an undisclosed sum.  The hospital had to settle another case earlier for firing a janitor due to mental disability and age.  It sounds like the hospital needs new counsel.     

Morres v Deer's Head Hospital

Dr. Clark Morres, the past Medical Director of the hospital, was fired from his position for alleged EMTALA whistleblowing on the hospital.  He filed suit in USDC in Baltimore.  He contended that the long term care hospital had a deal with the Peninsula Hospital to accept patients who were not stable for transfer.  This caused patient safety problems.  He is suing for reinstatement, removal of all derogatory statements in the file and unspecified damages.  The physician stated the transfers were allowed by the non physician head of the long term facility over the objections of the medical director. 

US v Cardiovascular Surg Assoc.
USDC Oregon

In a settlement four heart surgeons agreed to pay $2.5 million for illegally billing for assisting when it did not occur.  The surgical practice is now owned by PeaceHealth in Eugene.  The physicians did not agree to any wrongdoing in their settlement.  The physicians must also enter a five year CIA.  The hospital must train how to bill appropriately.  PeaceHealth, known for their help to physicians, had their entity Cardiovascular Surgical Associates plead guilty to five count of misdemeanor theft. 

Woods v Kaiser of Southern Calif.
Ca Ct App

Dr. Woods was an ED physician for 15 years at the Kaiser Bellflower Hospital (the same one that got into trouble for dumping patients into skid row).  The physician complained about the working conditions and patient care in the Ed and for his help he got put on administrative leave.  He sued under California Business and Professional Code 2056 for actions against public policy.  He was then reinstated and transferred to another hospital and finally suspended for his complaints.  The trial court agreed that Kaiser was negligent in their patient care since between 1999 and 2000 over 5000 patients were sent home without medical screening exams.  Also Kaiser intentionally understaffed and understocked the hospital to increase profits and provided inadequate and unsanitary care for its patients.  The trial court jury awarded $200,000 plus interest and denied the JNOV request from Kaiser.  The appeals court agreed with the trial court on all counts.  Gee, does anyone really believe that the THRIVE organization would thrive on the backs of patients?  

Ramirez v HealthNet
Conn Supreme Ct

HealthNet terminated Dr. Ramirez after his license was put on voluntary probation for three years.  He was accused of behaving in an inappropriate manner during exams on female patients.  After the termination he was given a hearing and lost.  He is suing for breach of contract since license probation was not one of enumerated "for cause" reasons for termination.  The HMO responded by stating he was terminated under the "not for cause" status and was given a hearing since he was terminated not because of the "for cause" status.  The Court agreed with the HMO. The Court stated the termination was for public safety and the HMO followed its own rules.           Top 

Medical Malpractice

Andrew v Shands at Lake Shore
Fla Dist Ct.

The hospital and radiologist were sued in a wrongful death claim.  The radiologist also worked as an employee of a public entity.  The court ruled that the immunity at the public entity did not carryover to the private entity where he missed a suspicious mass that was malignant.  The private hospital could be sued for the malpractice working under its direction and control.   

Arbino v Johnson & Johnson
Ohio Supreme Ct.

 The Court ruled that the state's non economic cap as well as the punitive damage caps are legal.  The non economic damages does not apply to med mal cases but does to simple negligence cases against hospitals.  This is good for the later decision on med mal non economic caps. 

Mertune v Geisinger Med Center

 Twins were given the wrong dosage of an antibiotic by the staff at the hospital.  One of the twins has died from the error and the other has permanent damages.  The hospital has acknowledged the error.  The only question is how much the check will be and with how many zeros. 

O'Brien v Vamovitsky
NY App

The plaintiff sued for med mal and then objected to the defense having an ex parte conversation with her non sued treating physicians. The NY court ordered the plaintiff to sign a HIPAA compliant authorization allowing the defense to have the conversation since she had put her medical condition at issue.   

Rosenbaum v Howard University

New York Times reporter David Rosenbaum was robbed and injured and then died due a chain of failures by the police, firefighters, ambulance and hospital personnel.  The city had already settled and the hospital has now settled.  The reporter was left unattended both at the scene and the hospital for a long time and then was taken to a hospital further away due to some personal business that one of the ambulance crew needed to do near Howard.        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.