July 15, 2004 Recent Legal News


Abortion & End of Life

Peer Review


Crime and Punishment



Coe v Kaiser

Coe was fired from Kaiser Permanente after filing a whistleblower complaint against the organization.  This was several years ago.  The Oregon Health Services investigated and found no merit to Coe's claims.  Coe's complaint was that the hospital did too many repeat x-rays, more than the remainder of the nation.  The investigation showed a repeat x-ray rate of 9-10%, which is within the norm for the industry.  As part of the questionnaire sent to the radiologists the investigators found that over half believed Kaiser's policies were punitive and not supportive.   

Budziszek v Mayo Clinic

The plaintiff contends that Mayo Clinic has cheated all of its employees out of eight hours of pay a year.  The clinic used a 2,088 work hours a year instead of the usual 2,080 work hours.  This makes a difference in annual salaries that are paid in biweekly paychecks.  Budziszek was a senior salary administrative analyst at the Clinic.  He has since resigned.     

Radiologists v Yale
To Trial

The trial of one group of radiologists against another group and Yale University has begun.  The plaintiffs state that Yale hired the new radiologists and the quality of care plummeted.  Yale says the physicians are disgruntled.  The end result, no matter who wins, will be a another bad mark against Yale who was publicly humiliated last year for its collections policy. 

Doctors v Magee Women's Hosp.
To Trial

The court has allowed the suit against the hospital to go to trial by disallowing the summary judgment.  The judge allowed the allegation that the hospital placed the electronic signature of two pathologists on Pap reports even though the doctors had not seen the slides.  The doctors then were disciplined when they objected to the falsity.     Top 

Abortion & End of Life

Planned Parenthood v US
DC California

A federal judge ruled that the partial birth abortion ban law passed by Congress and signed by President Bush was unconstitutional.  The judge said the law was unconstitutionally vague and posed an undue burden on a woman's right to choose a second trimester abortion.    

Roman Catholic Diocese v California
Supreme Court

The Diocese of Sacramento has a health plan.  California has a law requiring all health plans to provide contraceptive coverage in their plan.  The Church does not think this applies to them because of the religious nature of their business.  However Catholic Charities is not a religious business and therefore must include contraception in a California Supreme Court decision.  The Diocese is planning to appeal the case to the US Supreme Court.

Stein v Akron Children's Hosp.
Appeal Awaited

Stein is the father of the 7 month child in the hospital with severe brain injury.  The father has appealed a decision to take the son off the respirator.  The Ohio Supreme Court has agreed to allow the child to remain on the respirator until all appeals have been settled.  The child's guardian ad litem had agreed to stop life support.  The Court of Appeal agreed but a dissent stated the Ohio law does not apply to minors and the law for guardians does not address withdrawing of support. The father is suspected of causing the injury by severe shaking.     Top

Peer Review

Weinberg v Cedars-Sinai
Cal. App. At.

The physician had a peer review at the hospital after his privileges were terminated.  The judicial review and the medical executive committee both agreed that the privileges should not be terminated.  The Board overruled tem both and terminated the privileges.  The physicians sued under mandamus and then in the court of appeal and lost.  The Board is entitled to its own judgment after giving weight to the other decisions.  The chief of staff communicated his own feelings about the MEC decision and this was ruled not to be a conflict of interest of an ex parte communication.  

Mason v Central Suffolk Hosp

Mason had his hospital privileges  removed via the peer review route.  He is now suing for reinstatement and damages.  New York and federal law both state damages are no allowed and only reinstatement is allowed.  However this is a breach of contract case where the physician is claiming the hospital violated its bylaws.  He will lose.  

Kessel v Monongalia Genl Hosp.
West Va. Supreme Court

In the last Update I reported on this case that disallowed the hospital from entering into an exclusive contract for anesthesia if that contract prevented others from exercises their already held privileges.  What I didn't state was the Court disavowed the bylaws as a contract since it is a preexisting duty and that the termination of privileges by contract does not give rise to due process since it is not a peer review activity.  The Court went on to state that staff membership is not a property right but a valuable benefit that can not be disposed of in a capricious or arbitrary manner.  The Court then went on to use the term Right when discussing the public's ability to choose it's practitioners.  The last thing the Court did was describe that the hospital can not say that the physician has a privilege but can not use it. 

Med. Society of NJ v Mottola
District Ct. NJ

The District Court stated that under New Jersey law any report of medical malpractice that goes to the state Board is open to the public even if the same report goes to the National Practitioner Data Bank.  HCQIA does not protect data reported to a state agency.       Top


Orgovan v Bloom
NY Admin Dept.

In yet another case of attempted vicarious liability, the plaintiff lost attempting to sue a hospital for the act of an independent physician.  In this case the plaintiffs regular physician referred the plaintiff to the defendant.  This is the best example of a frivolous law suit since the defendant or the insurance company had to pay for the defense of a suit the attorney should have known was a no-win situation prior to filing. 

Women v Momah
44 Suits Filed

 Dr. Charles Momah, a six foot two inch, over 300 hundred pound OB/GYN originally from Nigeria and now practicing in Seattle, Washington has had 44 suits filed against him to date.  Most of these are for molestation, rape and malpractice.  He has also been accused of having his twin brother, who's also a physician, examine the patients. Dr. Momah's medical license has been suspended and he is being investigated for criminal charges.  Of course, nobody knows where he is.    

Broadnax v Gonzalez
NY Supreme Ct.

The issue in this malpractice case is if an expectant mother may recover for emotional distress if malpractice causes her to miscarriage or have a stillborn infant.  The answer is yes according to the court.  This is a reversal from a previous ruling that required a showing of a separate injury to the mother and fetus.  The mother had vaginal bleeding and the baby died prior to a C-Section for abruption.  

Smith v Consulting Management
Fla. Jury

In a case that was a loss for all, a patient in a nursing home was attacked by fire ants and had multiple blisters.  The jury awarded $1.2 million but will she will receive nothing.  The nursing home had no insurance and filed for bankruptcy.  The attorneys never even went to court when the damages were announced.  This case should never have gone to trial.  There should have been a settlement of some money that allowed the home to stay in business. 

Walz v Wyse
Michigan Supreme Ct.

The issue is the statue of limitations.  The infant died in April. 1994.  In January, 1999 the mother notified the defendants she was going to sue.  In May 1999 she was appointed representative of the estate and in June filed suit for wrongful death as the representative of the estate.  The defendants moved for summary judgment since there is a two year statute of limitations for wrongful death and won in the trial court.  The Court of Appeals affirmed.  The Supreme Court stated the mother did not notify until three years after she should have.  Case dismissed.

Lagassey v Connecticut
Conn. Supreme Ct.

In another Stature of limitations case the state high court stated the statute does not run from when the plaintiff could have discovered the malpractice but when they should have discovered the malpractice.  In this case the decedent died of a ruptured aortic aneurysm and the family was told that he received appropriate care by a physician who reviewed the case.  Another physician two years later reviewed the case and stated there was malpractice.  This started the running of the statute.

Price v Currie
Ga. Ct. App.

In yet another Statute of Limitations case, the plaintiff had a mastectomy with follow-up radiation.  A year later the patient began complaining of numbness in the ipsilateral hand.  The progressed and she was not improved after a cervical discectomy.  She later was told it may be from radiation and sued for lack of informed consent and malpractice.  There is a two year statute in Georgia and the suit came later.  The plaintiff claimed fraud to increase the statute.  It didn't work.  The courts both found she blew the statute.

Kelley v Middle Tenn. Emergency Phys.
Tenn. Supreme Ct.

Kelly had heart disease and was hospitalized at the hospital and treated with anti-coagulants for a clot in the coronary artery.  Following discharge she was seen in the ED several months later and the Ed physician talked to another physician in the cardiology group that originally treated her who was on call for emergencies .  He told the ED physician what had occurred and possible treatment.  She was discharged and then died.  The issue was there a physician patient relationship.  The trial court said no.  The court of appeal said yes and the Supreme Court agreed that there was a controversy as to whether a relationship existed.  This needed to be decided by a trial court. Summary judgment overturned.  

Tadlock v Mercy Hosp. Sacto
Cal. Ct. App.

Tadlock sued Mercy under a claim of ostensible agency for the emergency room physician.  The Conditions of Admission to the ED stated that the physician was independent and not a hospital employee.  The Court said one must look at the totality and small print in a long form given to a person to sign to gain entrance into an emergency room doesn't cut it.  There must be more notice than the regular print in the Conditions.     

Crime and Punishment

US v Clemis Jackson, MD

Dr. Jackson of Houston, Texas, was convicted of Medicare fraud while he was the medical director at a physical therapy clinic.  He did not supervise and signed off on patient that did not meet the guidelines for therapy.  He was sentenced to five years in federal prison with no parole and ordered to pay restitution of $1.39 million.

US v Jorge Elias, MD

Dr. Elias of Norwalk, Conn. pled guilty to charging for Vaccines from the Vaccination from Children program which he received for free.  Under the civil penalty he must repay double damages to the government, about $220,000 and $108,000 to the private insurers he erroneously billed.

US v Suvama Shah, MD

Dr. Shah of Westport, Conn. pled guilty of the same charges as Dr. Elias.  She will pay $318,000 to the state and feds and $230,000 to private insurers.       

US v Southeastern New Mexico Physicians IPA

A 68 physician IPA has settled a case with the feds admitting it had orchestrated agreements to fix prices and to refuse to deal with patients except on collectively agreed upon terms.  The consent decree prohibits anticompetitive behavior.  There was no admitted wrongdoing.       

US v Tenet
Possible Settlement

Tenet could end up paying over a billion dollars for their Redlands Hospital Cardiac lack of oversight and complicity as well as other charges against them around the country.  If this fails the Chain could face civil and criminal trials throughout the country.   

There is a story in the Wall Street Journal about Tenet and potential recruiting violations at Alvarado Hospital in Southern California.  The hospital gave relocating expenses to physicians, which is standard in the industry.  In fact, it is standard in all industries.  It is more probable than not that the rational behind this case is the US Attorney prosecuting this case is attempting to make her "bones".   It is also not illegal as long as there are no threats to refer patients only to the paying institution.  

US v Warner-Lambert

Warner-Lambert pled guilty of criminal health fraud and was sentenced to pay a $240 million fine.  The charges were from a whistleblower regarding the promotion of Neurontin.  The whistleblower will receive $24.64 million which he is to share with the attorneys who did minimal work on the case.  

US v Chiropractors

Chiropractors, Ronald Halstead of Scottsdale, Arizona, William Filcheck or Morgantown, West Virginia, Scott Taylor of Mannington, West Virginia, all were sentenced for money laundering and health care fraud.  They formed a company to bill Medicare and private insurers for tests actually performed by physicians.  Halstead received a sentence of 10 years and one month, the other two each got three year and one month sentences.  They were also ordered to pay $1.9 million.  A fourth chiropractor, Robert Burns, Jr. of Morgantown fled to Ireland where extradition is now pending.    Top


Little v Nursing Homes

Little had a stroke and needed nursing home care.  He was refused by six nursing homes and he is HIV positive.  He is suing for violation of a law that prohibits facilities that receive federal money from discrimination against patients with disabilities.        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.