June 1, 2008 Recent Legal News

Peer Review








Peer Review

Ennix v Alta Bates

Dr. Ennix, a black cardiac surgeon, sued the hospital in Berkeley, California and some of the officers for racial discrimination after his privileges were temporarily curtailed.  The hospital filed for summary judgment and lost.  The basic question is whether Dr. Ennix is an employee under a contract with Alta Bates.  He had no written contract with the hospital and was an independent contract physician.  However, the court ruled that the combination of the bylaws, which under federal law in California are not by itself a contract, along with the hospital getting paid for hospital services done by the physician give the physician potential contract status and therefore needs to be resolved at trial.  Dr. Ennix provided a prima facie case for discrimination.  Alta Bates then countered with peer review and Dr. Ennix countered that with a showing that the peer review was prejudicial.  I might add that Alta Bates is a Sutter hospital and so uses Sutter attorneys.  Sutter has just hired a new chief attorney.  Could there be a relationship between the two? 

Wieters v Bon-Secours
SC Ct App

The physician sued the hospital for discrimination and wanted information on other physicians that were summarily suspended.  The court said no.  That information is privileged under the state's peer review privilege.  

Massachusetts Med Soc v Group Ins Commission

The Society has filed suit to keep the Insurance Group from posting erroneous material rating physicians on line.  The group wants to rank physicians by cost and equates that with quality.  They have no quality parameters as none exist.  The attempt by the Group is a fraud on society.  

Vesom v Atchison Hospital
10th Circ

 The physician lost his privileges at the Kansas hospital and sued for discrimination.  He lost in the under court and in the appellate court.  He could not show that the reason for his loss of privilege was a pretext for discrimination.  Without the racial claim the conspiracy claim fails.  The physician is an independent contractor and is not entitled to use retaliatory discharge.  There was no loss of prospective contract since he maintained privileges at other hospitals.

Brannigan v Memorial Hosp

Dr John Brannigan sued Memorial Hospital in Los Banos, California, for retaliation because he complained to the state about the quality of care in the hospital.  He is an OB and the complaint concerned the labor and delivery unit.  This was in 2004.  The state investigated and found the hospital was in violation in its quality of care.  When Dr. Brannigan went for another position he found he received a bad letter of recommendation.  However, not all is as it seems.  Dr. Brannigan is now under investigation by the California Medical Board for gross negligence, repeated negligent acts and incompetence.   

In Re McAllen Med Ctr
Texas Supreme Ct.

The Texas high court dismissed a claim against a hospital for negligent credentialing since the plaintiff's expert has no expertise in credentialing matters.  This shows the need for both plaintiffs and defendants to get experts with the correct qualifications. 

MacManus v Chattanooga-Hamilton Hosp
ED Tenn

The physician sued the hospital in state court and the hospital attempted removal to the federal jurisdiction under the guise of using HCQIA as an affirmative defense.  The court remanded back to state court because the defense can not determine where the case is tried.  The plaintiff physician could establish each of his claims without federal law.       Top


Morales v Sociedad Espanola
PR Ct App

This case followed the 9th Circ precedent (Arrington v Wong) by allowing EMTALA to be a cause of action for a patient in a non hospital owned ambulance that had contacted a hospital telling them they are coming there.  In this case the hospital broke off communications when they were told the patient had no insurance.         Top 


Fleddermana v Glunk

Dr. Richard Glunk did liposurgery on Amy Fledderman and the patient died.  The family sued and won a judgment in Pennsylvania of $20.5 million.  The patient died from a fat embolism and the family states the physician who performed the procedure in his office would not call an ambulance until it was too late.  The state medical board is also investigating the physician for doing surgery in an unlicensed facility, puncturing a bowel, and another hospitalization on a lipo patient two days prior to Fledderman.  Lawsuits for the latter two were settled for substantial sums.

Dewald v HCA
Tenn Supreme Ct. 

An independent radiologist erred by putting a wrong report in a chart stating a patient had lung cancer when it was another patient.  The patient sued the radiologist and the hospital.  The lower courts granted summary judgment to the hospital but the supreme court reversed and stated that the patient believed the radiologist was a hospital employee even though the husband signed a form stating the radiologist wasn't was good enough for the hospital to be vicariously liable.

Boren v Weeks 
Tenn Supreme Court

The court agreed wit itself by stating that an ED physician error may be vicarious liability providing the hospital acted in a manner consistant with having a reasonable person conclude the doctor was an agent and the person did believe the doctor was an agent.  The central question was did the hospital tell the patient the physician was not an agent.  Above it happened and the court stated the hospital was vicariously liable.  Here, there was no notice and the court ruled the same.  Only in Tennessee.

Drumm v Schell
MD Penn

The court allowed summary judgment for the hospital for the negligence of a independent contractor physician whom the hospital had no control over and whom the hospital did not assume the role of a comprehensive medical center with responsibility for arranging care for the patient. 

Hammer v John Peter Smith Hosp
Fined and soon to be filed

Dr. Hammer was hospitalized at the above psych hospital.  The hospital was fined by Texas $7500 for not calling the hospital's code team to care for a patient with acute cardiopulmonary distress.  Instead they called for an ambulance to take the patient from one area of the hospital to another, a distance of about 1000 feet.  The patient died. The family states that they have received a bill for $80,000 and the hospital has a lien on the patient's house.    

Jenkins v Valley West Hospital

Mrs. Jenkins won a $15 million settlement from the Sandwich, Illinois hospital for medical negligence in the birth of her son with CP and mental retardation.  The labor was not progressing well so the OB used a vacuum extractor 18 times in less than an hour and then another physician performed the C-Section when the fetal heart tones decreased.   

Chau v Riddle
Texas Supreme Ct.

The Texas high court ruled that the two lower courts were wrong in failing to consider whether the anesthesiologist was entitled to a Good Samaritan Defense since he was a member of the "labor and delivery team" at the time of the allegedly negligent intubation of child.   

St. Andrews v Scalia
NY App Ct

The plaintiff sued the hospital for the negligence of two independent contractor surgeons.  In New York, vicarious liability attaches if one enters the hospital via the ED.  This is considered coming to the hospital for care and not any individual person.  This makes the hospital vicariously liable for malpractice.  

Little Company of Mary v Superior Court
Ca Ct App

Marin sued the California hospital for elder abuse after his mother died while in the care of the hospital.  He sought punitive damages.  The hospital asked for summary judgment on the punitive damage claim due to the fact that it was a religious institution and that under California law required clear and convincing evidence of malice, fraud or oppression.  The Court of Appeals overturned the lower court and allowed the summary judgment motion.       Top


Palm Medical v State Comp Fund
CA Ct App

Palm is a medical occupational medicine corporation in Fresno, California.  The State Fund is the Worker Compensation Fund of California.  Palm applied twice for membership and was rejected both times.  After the second rejection, Palm sued.  In the underlying trial, Palm proved that State had substantial power in the area and won $1.131 million.  The judgment was overturned by the judge and both sides appealed.  The Court of Appeal ruled that there is no difference between a single physician and a corporation and that market power must be proved.  This came from both Potvin and Pinsker, California Supreme Court cases.  If a power does deny entry to a person then they must give them notice and appeal process.  This means that insurers must prove they do not have market power or give appeal processes, both of which will be costly for them.

Deshpamde v Medisys Health

Dr. Deshpamde was terminated from TJH Hospital and filed an EEOC complaint against the hospital.  He then came up for renewal of his privileges at Jamaica Hospital where he had privileges for 10 years.  He was given only a one year privilege instead of two by the hospital administrator and no explanation was given.  He sued stating it was retaliation for suing the other hospital.  The hospital could or would not give any rationale so the hospital lost summary judgment.  To trial.

King v VA
Fed Circ

The physician had prior work misconduct and then violated agency policy by copying information and sending it to the Joint Commission.  She was fired.  The firing was upheld due to the multiple acts.

Kansas Heart Hosp. v Idbeis
Kansas Supreme Ct

The Kansas Supreme Court stated that the corporate bylaws of the entities that own the Heart Hospital were approved by the physician shareholders.  The bylaws allow the repurchase of stock of shareholders that invest in any competitors to the Heart Hospital.  The 14 shareholders must sell their stock back to the Hospital per the provisions of the bylaws. This ruling has nothing to do with privileges and is pure Corporation law.       Top


FTC v North Texas Specialty Physicians
5th Circuit

A federal judge has ruled for the FTC against the IPA.  The FTC originally ruled that the IPA conspired to fix fees in negotiations with payors.  The Group had polled its physicians prior to negotiations as to how much they would accept from the payors.  The physicians did win one of the several issues before the court.  They are the first medical group to fight the FTC instead of settling.  They have not decided whether or not to continue to appeal.        Top


US v Borge

Dr. Aleyda Borge of unlicensed clinic Leonza Health Management in Hollywood, Florida has agreed to pay the government $6.7 million for doing medically unnecessary treatments.  This is twice the amount charged to Medicare and the physician is also banned from the program.  Separately, the clinic owner was sentenced to 54 months in prison.

US v Achilla
11th Circ

 The Court upheld the lower court's decision that Dr. Franz Achilla were guilty of fraudulent claims and the sentence of 78 months was correct.  Dr. Achilla had a Miami, Florida, AIDS clinic and billed for unnecessary procedures.  The sentence enhancement was correct since some of the treatments were dangerous and reckless.

US v Medtronic

Medtronic Spine, the purchaser of Kyphon, has agreed to pay $75 million for Kyphon's false claims.  Since this is a qui tam case the two former Kyphon employees will receive over $14 million.  

Florida v DeSonia

Andrew DeSonia, DO, of Indiana is awaiting trial for extradition to Florida.  He is wanted there for his participation in an internet prescription fraud.  He is accused of collecting $113,000 for writing prescriptions for over 3.4 million pills regulated by the CSA.  There is a 73 count indictment against him. 

US v Hartford Hospital

 Hartford Hospital in Connecticut has agreed to repay $789,000 to the feds for overbilling for IV chemotherapy.  

 US v Rogan

Peter Rogan, the prior owner of Chicago's bankrupt Edgewater Hospital, has been charged with obstruction of justice.  Rogan, who is living in Vancouver, Canada, has been alleged to owe $64 million to the feds for healthcare fraud.  If convicted of this he can be sentenced to ten years in jail and a $250,000 fine.  Rogan is now being detained by Canadian officials who are debating whether to allow him back into Canada after a trip to China.     Top


Community Hospital v Goldenring

The saga of Community Hospital in Ventura, California, continues.  The hospital had fired several of its top execs after it lost its legal case against its own physicians.  One of the execs was Michael Bakst, the CEO.  The Board is now filing suit against the hospital attorney, Goldenring, who was inept during the suit and its own accountants for covering up a misconduct by Bakst for filing erroneous vouchers for personal expenses and for allowing the illegal payments to physicians which cost the hospital $1.52 million in fines.  Goldenring's attorney stated that this is still the physicians getting back at the attorney for his defending Bakst.    

Alvarado Hosp v Blue Shield
San Diego Superior Ct.

Alvarado Hospital, a stand alone, lost its court case against Blue Shield.  Alvarado was purchased and the new owners attempted to disavow its contract with insurers while the contract was still in force.  The hospital was sued by the insurer and the court rightly stated the contract was still valid.  

Doe v Carnitas St. Elizabeth

An ER physician went up to a person dressed like a physician and discussed the patients HIV status with him.  The "doctor" was really the patient's boss.  Guess who is getting sued.  The suit asks for money and that the hospital issue badges so one can tell who is truly a medical professional.  Some suits are truly deserved. 

Alameda Hosp v CMS

 The hospitals sued and won in federal court a delay in the Medicaid regs that would have removed much money from the hospital coffers.  The CMS tried to pull a fast one but got caught.  The CMS may now republish the rule to take effect in two months.  The hospitals are after Congress to stop the capitol drying up.  

Nurses v Sutter

The Sacramento Business Times reports that Sutter now has the third class action law suit against it for the same thing, violation of state rules on meal and rest breaks.  The three may be consolidated and could cost Sutter millions of dollars in unpaid wages. 

EEOC v John Muir Health

The EEOC filed a suit against John Muir Health of Walnut Creek, California, for denying seven nurses positions at the hospital due to latex allergies diagnosed by a faulty blood test.  The hospital did not have an allergist examine the nurses nor confirm the blood tests. The nurses found other nursing jobs and did not have significant latex allergies.  The suit seems silly since all hospitals, especially in California, are short of nurses and would love to hire more nurses.  If found guilty the hospital would have to pay back wages and benefits.       Top


Richmond Med Ctr. v Herring
4th Circ

Yet again another court has struck down the constitutionality of a "partial birth abortion" that exposed physicians to potential criminal liability.  The question lies in the intent of the physician.  Did the physician intend at the beginning of the procedure to perform an intact or a standard D&E. Virginia tried to get it through but failed.        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.