July 15, 2005 Recent Legal News




ADA & Hospitals

Fraud and Abuse



Owens v Thomas
Miss. Ct. App.

A patient sued a physician for med mal.  The problem is that the surgery occurred at a Univ. of Mississippi affiliate hospital and the physician works there.  Mississippi has a law that those that work at the University are immune from civil damages.  The Court ruled that the physician was an employee and not an independent contractor.  There are five factors the court used.  The first is the physician was providing instruction to med students who were present at the surgery.  The second was the state's mandate that the surgeons act as teachers to insure well trained physician in the state.  The third was the university controlled the surgeon's on call.  The fourth was the surgeon's discretion in how to treat the injuries were of no import in the employee context. The last was that payment was by the university and not the patient.        Top


AmCareco v Health Net
Louisiana Jury

The jury has decided that Health Net fraudulently sold three sub units in Texas, Louisiana and Oklahoma.  The three sub units all went bankrupt.  The jury awarded on the sale of the Texas unit alone a toll of $117.4 million against Health Net.  Health Net states they will vigorous appeal.  This means they will quietly settle.  The other two units were on a bench trial and that verdict will come later.

Vista Health v HIP of NY

Vista Health of Florida sued HIP of NY for lying to them and concealing the facts when they sold their Florida plan to Vista.  The settlement came after the jury voted to give Vista $38 million and were now in the punitive damage phase.  The amount of the settlement was undisclosed but one may surmise it was in the area of $50 million or above.          Top


Doe v Boston Med Ctr.
To Be Filed

I believe there will be several law suits filed against Boston Medical Center by patients who were either exposed or actually have tested positive for TB due to contamination by a physician at the hospital.  To date there have been two healthcare workers and one patient who have tested positive for TB and who the state authorities believe that the physician is the culprit.  There is no mention as to how the physician was allowed to practice without a TB skin test.  

Mohsan v Roule-Graham
La. Ct. App.

A patient sued the hospital for an unconsented hysterectomy.  She had gone in for a uterine mycomectomy.  The hospital asked for and was granted a summary judgment since it is the surgeon and not the hospital that obtains informed consent.

Torres v Sullivan
Fla. Dist. Ct. App.

A patient sued an OB for failing to meet the standard of care in his treatment.  The patient's expert testified in his deposition that the OB needed to ask two questions of the patient.  The trial court stated that the one question asked was enough.  The court of appeal overruled the trial court stating that the question of what is the correct standard is one for the jury.  To trial.   

Smelik v Humana
Jury Award

Humana is the perfect example of idiots running a company.  A jury awarded the family of Smelik $7.4 million in a wrongful death suit due to substandard care of an enrollee.  At the same time Humana settled a punitive damage claim in the same case for $1.6 million.  The Humana spokesperson then turns around and states they will "vigorously appeal" the trial court.  It's hard to appeal the case after you've settled a part of the case.  What it actually means is Humana will attempt to settle with the parties for less than the allotted amount. 

 Nieto v Sierra Kings Hospital
Jury verdict 

In a case that should be appealed and overturned, an enterprising attorney won a malpractice case and then received four times the amount of money his client collected.  The rationale was that the case had EMTALA implications.  The physician had settled out so the case was only against the hospital for transfer without stabilization and med mal.  The judge bought it.   Top

ADA & Hospitals

Connors v W. Orange Health Dist.

In an opinion consistent with opinions across the country the court ruled that the hospital was not to be given its motion to dismiss not giving patients sign language interpreters.  The hospital argued that there was no problem since writing was used by both parties.  Wrong, hospital!  If you don't supply a sign interpreter, you prevent the patient from participating in their care and that is against the ADA and under Section 504 of the Rehabilitation Act.        Top

Fraud and Abuse

US v Patel

Dr. Tushar Patel has agreed to pay a fine of $315,000 for billing for physical therapy not performed by either a physician or a physical therapist.  He also billed office visits as consultations and improperly billed for chiropractic services.  His company also paid $85,000 in fines.    

US v AmeriChoice of Penn.

AmeriChoice of Pennsylvania, a subsidiary of UnitedHealth, has agreed to pay a fine of $1.6 million for failing to process or pay claims in a timely fashion and by inaccurately reporting claims processing data to the state.  They did not admit liability but have entered into a corporate integrity agreement, which is very onerous to the company. 

Physicians v WellPoint

One by one they tumble.  WellPoint is the latest of the HMOs to settle the Florida case coming up for trial in September.  WellPoint has agreed to pay $200 million to the physicians for the lack of payments and the systematic rejection of payments.  WellPoint has joined Aetna, Health Net, Cigna and Prudential in settling the case. They got off very cheap.   Top  


US v Northwestern/Evanston
In trial

The government is challenging the take over of Highland Park Hospital by Northwestern University and Evanston Hospital.  Since the takeover the prices of healthcare have raised significantly.  The system has invested heavily into the new hospital with new equipment.  When the takeover occurred the old chiefs of the Departments were replaced by ones from the system and some well regarded physicians were let go.  One might wonder if this has anything to do with the feds beginning the investigation.        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.