July 15, 2010 Recent Legal News


Peer Review







Radiology Associates of Sacramento v Sutter Health

Six partners of the group sued Sutter Health for barring them from practicing in the area Sutter hospitals.  The suit is asking for reinstatement of privileges.  The group has been doing the exams for Sutter since 1923.  This year Sutter stopped negotiations of a contract with the group and began using its own radiologists.  A second contract for outpatient x-ray is coming up between the two.  Sutter has with this move alienated its other physicians.  They really do not care.

Narotzy v Natrona County Hospital
10th Circ

The appellate court granted the summary judgment for the hospital against the neurosurgeons.  The physicians claimed constructive discharge but the court stated that since they had privileges at another hospital and the breakup was due to "insurmountable disagreements" between the parties for which both parties were responsible.  The Fourth Amendment claim for due process was dismissed when the hospital searched the lockers of the physicians.  The hospital had video of the physician's staff leaving the hospital with equipment.        

Patient-Physician Alliance V ValleyCare Health
Suit Dropped

The Alliance had filed suit against the ValleyCare Hospital for an illegal foundation to hire physicians.  They filed an injunction which was dismissed on two occasions.  Now they have dropped the suit.  The foundation needs by law to have 40 physicians of different specialties.  When the suit was filed that was not the case.  It apparently is now. 

Employees v Tri-City Center
To Be Filed 

The Oceanside, California, hospital has fired five employees and disciplined a sixth for using social media to post personal discussions about anonymous hospital patients.  There was no breach of privacy but the hospital believes there was.    Top

Peer Review

Chavira v Palomar Med Ctr
Ca Ct App

The physician, a cardiologist, was on a leave of absence when he was removed from the staff for quality concerns. He was suspended prior to his leave of absence but the suspension was removed when he left.  He then applied for his cardiac privileges and was denied.  He went through full hearings and was denied.  He sued for mandate and was denied.  He then sued the hospital stating the decision was not supported by enough evidence.  The court agreed with the lower court that the hospital had enough evidence to suspend his privileges and was correct in it's decision.

Johnson v Gray's Harbor Comm. Hosp.
9th Circ

Johnson's privileges had expired in 2003 and the hospital summarily suspended him in 2004.  He sued since he had no due process rights.  The court stated none were due since he had no privileges at the time of the suspension.  He tried to re-apply in 2006 and was rejected.  He sued under Section 1981 but the hospital was not a state actor and he did not provide enough evidence of damages for his defamation claim.  

Ndulue v Fremont-Rideout Health Grp

The only Black pediatrician on the staff of the hospitals was only given a one year appointment instead of the standard two.  He sued six physicians and the hospital for racial discrimination.  The hospital and three of the physicians were dismissed in summary judgment and three others were allowed to stand trial as the plaintiff had showed a prima facie case against those three.

Gautreaux v Chattanooga Hamilton County Hosp
Tenn Ct App

A third party, Gautreaux, wanted information about a confidential settlement between the hospital and a physician.  The hospital refused and the court agreed with the hospital.  The settlement was intimately part of the peer review process and record and therefore protected.       Top


Waples v Yi
Washington Supreme Court

In this med mal case the state high court again did the bidding of the Democratic majority and the trial lawyers by throwing out the 90 day notice prior to suing for med mal.  The court had previously tossed out the rule that a plaintiff needed an opinion of an expert prior to suing.   

Vanderford v Renown Health
Nevada Supreme Ct.

 In a 4-3 decision the state high court ruled that hospitals are not strictly liable for malpractice committed in the EDs by non employed physicians.  The hospital had previously settled but wanted the case to go forward. They may be held liable for ostensible liability if the hospital assigns the physician and is not told the physician is an independent contractor.   

Patients v Skilled Healthcare
Jury Trial

The California corporation was the defendant in a class action trial for not having the state mandated nursing in their facilities.  The jury found for the plaintiffs and awarded $619 million in compensatory damages.  Punitive damages may be assessed at a later time.  The jury came up with the figure using the statutory damages of $500 per day per patient that the 22 nursing homes in the corporation were in violation of the law.   

Yarzebinski v US

Ms. Yarzebinski is suing the VA hospital for developing Hepatitis C following a laryngeal exam for vocal cord paralysis in 2008.  She contends that it was due to under sterilized equipment.  The government denies it was due to unsterilized equipment but sent her a letter stating that she may be at risk for developing an infectious disease due to having a procedure with an unsterilized scope.   

As an aside to the above case it has been found that the VA in Miami did not notify 79 vets that they may have been exposed to Hepatitis, HIV or other diseases due to unsterilized colonoscopes.  Last year three Miami vets later tested positive for HIV, seven for Hepatitis C and one for Hepatitis B.  This month the VA in St. Louis had the same sterilization problems with 2000 vets. The administrator from St. Louis and Miami have been removed.   Top


Oregon v Wyland
Superior Ct.

The court took away the child of the Wylands due to their refusal to allow treatment of their child.  The child's age and condition were not revealed.  Temporary custody of the child was awarded to the state and allowed treatment by the Oregon Health and Sciences University.  The Wyland's belong to the Followers of Christ church which believes in healing by prayer.  In the past 30 years about 20 children of people in this church have died from either preventable or treatable conditions.        Top


Connecticut v HealthNet

The state Attorney General had sued HealthNet for a data breach and the two sides settled for $250,000.  There will be an additional $500,000 paid to the state in case it is found that the data breach caused unlawful use of the information.        Top


US v Advanced Radiology of Beverly Hills

Oaks Diagnostics, the parent of the above radiology firm, has agreed to pay the feds $647,000 for false claims.  It was alleged that the group did unnecessary exams and billed the feds for them.  The feds stated that the radiology office recruited people for unneeded CT and MRI tests.  One contractor was sentenced to federal prison for this.  The case started by a former employee whistleblower.  

US v National Cardio Labs

National Cardio Labs and the companies manager and her husband have settled a suit for Medicare fraud.  They were accused of knowingly submitting false healthcare claims for cardiac and blood pressure diagnostic testing.

US v United Shockwave Centers

 United Shockwave Centers, United Prostate Centers and United Urology Centers settled with the feds on anti-kickback claims.  The feds claimed the physician owners leveraged patient referrals to obtain contract business from area hospitals and they also caused hospitals to to submit claims for DHS that resulted from prohibited referrals.  The Centers will pay $7.3 million and sign a CIA.  

US v Phung
10th Circuit

The 10th Circuit affirmed the conviction of Dr. Can Phung of healthcare fraud as well as illegal distribution of controlled substances.  During the original trial many patients testified that they got large amounts of controlled substances with no physical exam.  The court rejected all of Phung's contentions.         Top


Henry v Patients

Dr. Kimberly Henry has filed an injunction and law suit against 12 people who have posted negative comments about her care as a plastic surgeon in Marin County, California.  She is claiming damage to her reputation and defamation and wants a million dollars.  It is interesting that some people continually want publicity, even if bad.  Some would just let it be.  She will need to prove the statements false, a difficult legal feat.        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.