July 15, 2004 Recent Legal News




Fraud and Abuse

Medical Staff Actions



US v Barbera

How could they do this to a fellow Urologist?  The Government sued for filing false tax returns just because Dr. Barbera had a "no-show" worker on his solo practice payroll.  It might be that the person on the payroll was a member of the Luchese Organized Crime Family, but then again, maybe not.  Dr. Barbera was convicted.   

Perry v Baptist Health
Ark. Supreme Ct.

 Perry and others formed a LLC and contracted with Baptist to staff their ED.  After a problem in the ED, Perry was summarily removed from the ED roster by the hospital.  Perry sued for breach of contract and the hospital defended by stating they had no contract with Perry only with the group.  Nice try but no cigars.  Perry is a third party beneficiary of the contract and as such has the right to sue for breach of the contract.  To trial.   

Batsuk v HCA
Change of Decision

 Baksuk and Howard, two consultants, sued HCA for breach of defamation issues.  They won $1.5 million in compensatory and $25 million in punitive damages.  The judge stated that the amount of punitives shock the conscience and deleted the entire amount. The pair also won the ability to pursue their own software sales to others besides HCA.  

Custer v Geisinger Medical Grp
3rd Circ

Custer was working for Geisinger when he acquired meningitis.  He recovered and sued Geisinger for medical malpractice.  The two settled with a statement that the settlement covered all claims arising out of the incident.  Later Custer was rehired by Geisinger and after a period of time as an employee was fired.  Custer sued again but this time under the ADA.  Geisinger demurred and the District Court ruled for Geisinger stating the settlement agreement precluded the later ADA suit.  The 3rd Circuit did not agree.  The ADA did not arise out of the malpractice and the settlement only covered past and not future actions under the applicable Pennsylvania law.         Top  


Patients v Hospitals
Yet to be Filed

A year ago, a patient came to the ED with symptoms of fever etc. He died a short time later of a brain hemorrhage.  His organs were transplanted into multiple people at multiple institutions.  Four of these patients died from the transplants.  It has been confirmed that the donor had rabies. New testing may be done on donors.

Multiple Patients v Jewish Hosp
Ky. Filed

Twenty patients have filed suits against the Kentucky hospital for infections they claim were from unsanitary hospital conditions.  All the suits are with the same attorney.  He states that the patients contacted him after he filed the first suit.  Maybe? The suit alleges the patients were placed in unclean rooms, and staff negligence for not hand washing or gloving appropriately.  The bug is the ubiquitous MRSA, that is probably in all hospitals in the country.  

Castro v NYT Television
NJ App Ct.

Have you ever wondered how the "reality shows" get to film in the EDs.  They get informed consent from the patients, or do they?  One of the people is suing for lack of consent, fraud and invasion of privacy.  He also sued under the state Hospital Patient's Bill of Rights.  This latter was tossed since it gave no right to a private cause of action, but he others go to trial.  The plaintiff states that he was lied to by the show people and that they were incompetent to sign releases due to the injuries.  Good arguments.  It will be interesting to see how the court and jury rules.

Stebbins v Mass. General

Stebbins' child inadvertently was given insulin by the hospital when he was a preemie at the hospital.  Sp were up to a half dozen others.  The cause was a new and unsupervised pharmacy technician who put insulin into the IV bags of the infants.  The Stebbins child is now brain damaged.  The plaintiff now want the  medical records of the other children who were also given the meds to counter the cerebral palsy defense claim.  The hospital has said no even to redacted records for patient confidentiality and the judge has agreed.        

Molloy v Meier
Minn. Supreme Ct.

The plaintiff sued three physicians for all not doing the test for Fragile-X that would have kept the patient from having more children with the disease.  The physicians claimed they had no duty to the patient to do the test not did they have the duty to tell the patient about the risk of the disease to future children.  Her future children did have the disease.  The doctors lost that argument when the court stated it was a foreseeable event.  To trial.    

Knowles v Superior Ct. of San Diego
Ca. Ct. App.

Knowles did surgery on a patient and then two days later several other physician operated on the same patient.  The patient died and an expert told the family that there was malpractice against the other physicians.  Several years later another expert told the family that Knowles had also committed malpractice.  Knowles pled the statute of limitations had run.  The trial court went for the plaintiff and Knowles appealed.  The appellate court stated that the time starts to run when one should have suspected the malpractice not when it was shown to exist.  The statute had run and no case. In a second part of the case the court of appeals ruled that a mentally retarded child could sue for wrongful death via the guardian.  

Ledbetter v Hunter
Ind. Ct. App.

Ledbetter is the mother of a injured child.  The child was injured at birth.  The child is now 19 years old.  The statute of limitation in a medical malpractice case in Indiana is two years, unless under six and then have to age eight.  The court of appeals tossed the statute since it set different limits for med mal cases than other cases. In 1999, the Indiana Supreme Court ruled the two year statute of limitations begins to run when the plaintiff finds out they have been harmed.  (See different opinion above) 

Stanley v McCarver
Ariz. Supreme Ct.

Stanley had a chest x-ray as part of an employee physical exam.  The x-ray was abnormal with "a small nodule and patchy consolidated parenchymal pattern". McCarver, the radiologist, did not tell the patient but told the employer and the company he worked for.  Stanley ended up with a cancer and died.  The issue is whether or not a radiologist has a duty to tell a patient of an abnormal finding.  The Arizona Supreme Court says that they do, even in the employment arena.  The employer had gone bankrupt after a settlement and the employer was dismissed.  However, the Court had to do alot of finagling to do since the opinion was 27 pages.   



Chambers v Coventry Health of La.
ED La.

Chambers had colon cancer with metastasis treated with surgery and chemotherapy.  His physician wanted to do a CT/PET scan on the patient but the insurer refused.  The plaintiff filed suit enjoining the insurer from stopping the test.  The court went through the four elements of injunction (1) substantial threat of irreparable injury-for plaintiff since earlier pick-up of disease usually means better (2) balancing of potential harm-the early diagnosis outweighed the insurer's $2700 (3) Public interest- no harm to public to grant the test and (4) likelihood of the case on its merits- The insurer acted as judge and jury and needed to do it using appropriate methodology.  They covered each individually therefore the combo should be approved.  The injunction holds and the patient gets the test.      

Medical Assurance of Ind. v McCarty
Ind. Ct. App.

The surgeon operated on a patient for colon cancer and the patient had an anastomotic leak post-op.  On the second surgery, the surgeon left a clip on the ureter.  Another physician did the third surgery to remove the clip.  The surgeon was sued and lost over a million dollars.  The insurance company was charged with paying the insured amount of $100,000 but was that for each of the two causes of malpractice or only for one occurrence.  The court said the insurer was liable for two causes of action and that each was a separate occurrence.  

Jellison v Florida Hospital

One of the first cases by an individual against a hospital for illegal billing has been filed.  The suit claims price-gouging and predatory bill-collecting.  Jellison is unemployed and uninsured.  He had an 18 day hospital stay in Florida Hospital in 2002.  His total bill was $116,600.  Insured patients would have paid about $14,000 for the same stay.  The hospital was willing to compromise but the offered $13,000 was not enough.  Now that the attorney is involved, no logical compromise could be reached. 

Carter v Health Net of California
9th Circ.

Carter applied and was accepted into the Health Net PPO run by a wholly owned subsidiary. He applied for non cosmetic jaw surgery for his daughter and it was rejected.  Under the contract he went to arbitration against Health Net only.  The subsidiary objected but lost the objection.  Carter won the arbitration and then went to state court for attorney fees.  The state court removed it to the federal court and Carter appealed the removal.  The 9th Circuit said that the feds had no subject matter jurisdiction and remanded it back to the state court for a decision of attorney fees.              Top

Fraud and Abuse

D Mass.

The judge in the case of the government against TAP executives for their marketing of Lupron dismissed a third defendant of the initial eleven.  There was insufficient evidence against them.  This happened after the main trial and before closing arguments.

At the end of the trial all defendants were acquitted of offering kickbacks to physicians for using Lupron and Prevacid.  The defendants were all employees of TAP and not the company per se.  The defense was we offered the drugs to the physicians as drug samples to promote the drug, a legal activity.   

US v EMSCO Billing

The government charged EMSCO Billing in a whistleblower suit with overbilling Medicare and Medicaid and billing false claims in Maine and Illinois.  The company paid $1.1 million in the settlement.  

US v Larkin Comm. Hosp
SD Fla

Larkin Hospital in south Miami, has been accused by the government of illegal kickbacks for bringing seniors with nothing wrong with them to the hospitals from nursing homes.  The government contends that almost half of the patients were not medically necessary to be there.  The hospital is owned by one physician, Dr. Jack Jacobo Michel.  In 1997, the government contends that about 75% of the Medicare patients were there illegally and that the hospital paid Michel and his brother as well as other physician to refer the patients.  The government also alleges that in 1998 and 1999, after Michel purchased the facility that close to fifty percent of the patients had no medical necessity to be in the hospital.  If proven, this civil suit would probably break the hospital and it would close or be sold.   Top

Medical Staff Actions

Ford v Cascade Health Services

Ford was not reappointed to the medical staff of the hospital.  He sued for antitrust and tortious interference with economic relations.  The court ruled that summary judgment for the Hospital was not available since the hospital had met with a rival anesthesiology group prior to the non-reappointment of Ford.  The meeting may have been for improper motives and a trial to determine the facts was required.        Top


Bearman v CA. Med Bd.
CA Ct. App.

Bearman, a physician believer in medical marijuana, had his license under investigation for a poorly interpreted letter he had written for a patient.  The medical board attempted to obtain his medical record for the patient.  The patient refused to release the record and the board attempted to get it via a subpoena.  A judge issued the subpoena and the physician appealed.  The California court of appeals agreed with the physician.  There were no facts only conclusionary statements regarding the possibility of a violation.  The physician when writing a recommendation for medical marijuana must follow the rules for any prescribing.  They are (1) good faith exam (2) a treatment plan with objectives (3) discussion of side effects and (4) periodic review of the drug's effectiveness.          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.