June 1, 2009 Recent Legal News



Peer Review


Medical Rights



US v WellCare

WellCare, a Florida based HMO, has agreed to pay $80 million in fines to head off a healthcare fraud charge.  This means the feds may still go after individuals.  The settlement also states that the company will cooperate with the feds in any investigations of individuals.  Watch for criminal fraud charges.   

WellCare is paying an additional $10 million plus interest to settle an SEC accounting fraud probe.  This does not sound like a company that should be insuring the folk of Florida or anywhere else. 

US v HealthEast Care

A St. Paul, Minnesota, hospital system will pay $2.28 million for false Medicare claims.  In a whistleblower suit the hospitals had done a procedure in the hospital that was amenable to outpatient status at less money.  The company making the tool for kyphoplasty recommended it be done in a hospital setting. Medtronic settled with the government last year for that.

US v Aventis

Aventis Pharmaceuticals agreed to pay $93.5 million to settle allegations of misreporting drug prices to reduce its Medicaid Drug Rebate obligations.  The award will be split between the feds, state Medicaid funds and some public health services.    Top


California v Kaiser

Kaiser was fined by California $250,000 for privacy breaches in the Octomom case.  The organization has  has disciplined the employees involved.  Fifteen people were fired and an additional 8, including two physicians, were disciplined.  Kaiser has 10 days to appeal the decision.   

Patients v Mass General Hosp

A manager at the hospital brought records of 66 HIV patients at Massachusetts General Hospital home with her over the weekend and left them on the MTA.  They, along with the Kingston Trio's Charlie, are lost forever on the MTA.  Two of the affected people have filed suit and the shyster attorney looking for a big payday is attempting to turn it into a class action suit.  There is a policy at the hospital that no private patient information is to leave the hospital.  The HIV organizations are attempting to meet with the hospital to see how this can be prevented in the future.  This is much more logical than a law suit.          Top

Peer Review

Hussein v Duncan Hosp

Dr. Basem Hussein was a locum tenens in Radiology at the hospital.  The contract was for two weeks.  After several days Dr. Hussein believed the hospital was pushing too much work on him and walked out.  The hospital medical staff terminated him and reported him to the NPDB for abandonment.  There was no hearing or opportunity to be heard prior to the report.  The physician sued the hospital for Intentional Emotion Distress, Defamation, Intentional business interference and gross negligence.  The hospital moved for summary judgment on the basis that the physician signed a release on his hire.  The physician moved for summary judgment because the hospital is not protected under HCQIA since he was given no notice nor opportunity to be heard.  There is a signature on the page of the release but there is a question as to whether the signature is that of the physicians and if it is whether the contract is enforceable due to the unequal standings of the players.  The hospital lost its bid for summary judgment on all counts.  The physician lost summary judgment on his claim for Intentional Emotional Distress but can continue with the remainder of the causes.  This case is one that shows that hospital attorneys must know the law and not allow a kangaroo court.  

Knatt v Hosp Serv Dist
5th Circ

In another case of physician idiocy, the surgeon was summarily suspended and later reached an agreement to have the suspension that was based on physical problems lifted and replaced by a letter of reprimand.  The physician agreed not to sue the hospital or physicians.  The physician then asked and received a voiding of the original suspension.  The surgeon was still not happy and decided to sue the MEC.  He, of course, lost in both the lower court and the appellate court.  He had agreed not to sue and then did.  I hope the attorney that took this case lost money as well as time.        

Liu v Bd of Tr. Univ. Ala.
11th Circ.

In an interesting case the physician was summarily suspended from his position as a tenured associate professor of cardiology at the University of Alabama Birmingham.  Upon advice of counsel he resigned while under investigation and was reported to the NPDB for same.  Liu then applied for a professorship at USC and requested his peer review information be sent to USC.  UAB refused and instead sent a letter stating he was put on probation and that some of his procedures were not up to the standard of care of the institution.  Liu was dropped from consideration for this job but did get on the staff of other hospitals.  He sued UAB in federal court for not sending the requested records as a violation of the Supremacy Clause and for violation of the 14th Amendment violating his right to his chosen profession.  The lower court gave summary judgment to UAB and the 11th Circ agreed.  There was no violation of the Supremacy Clause but there may have been a problem under the state law, which was not filed.  He also had a job, maybe not the one he wanted, but a job in the profession. Top


Lakeland Medical Ctr v Neely
Fla Ct App

Florida has Amendment 7 passed by the voters several years ago.  This allows those suing for med mal to obtain peer review documents in discovery.  Here the plaintiff wanted and found the hospital's preexisting to the passage of Amendment 7  adverse medical reports as well as those reports prepared for litigation are fair game and discoverable. 

Verwers v Rhoads
Iowa Ct App

Verwers was having a surgical procedure and had second and third degree burns during the procedure by a metal template that is usually cooled prior to surgery but in this case was not.  Verwers lost in trial court since his case was based on negligence and re ipsa loquitor.  The judge refused to give the jury instructions on res and the court of appeals reversed.  All present in the operating room testified that they did not know who or what was responsible for the injury but it certainly was not the patient.  There will be a new trial unless there is the expected settlement first. 

Aprile v Nyack Hospital

Aprile was diagnosed with breast cancer, a very deadly disease in a male.  He underwent a mastectomy and lymph node dissection.  He was then told the diagnosis was a mistake and the slides were mixed up with someone else's.  The hospital is not bright since they are stating the allegations are false and inflammatory instead of trying to settle the case for as little money as they can.

Patient v Rhode Island Hosp
To Be Filed

A child was having an oral procedure performed when part way through the procedure the team noted the surgery was being performed on the wrong side of the mouth.  The procedure continued on the correct side.  The surgeon and operative team were placed on leave for violation of the JC procedures.  The state Department of Health is investigating the incident. 

Patient v Arkansas
Arkansas Supreme Court

The Arkansas Supreme Court continues to place roadblocks in the medical malpractice reform enacted by the legislature.  In 2008, the high court negated the certificate of merit standard which required a filing of an expert opinion with the filing of the plaintiff's case.  Now, the same court has ruled unconstitutional the legislature's rule that the defense may present to the jury or court the amount of money paid for the plaintiff by a third party.  These cumulative rulings will empower trial attorneys to file more cases without merit.

Weston v Fayette Hosp
Ind. Ct App

Weston sued the hospital for med mal and negligent credentialing of a ED physician.  The hospital contracted with a group to supply the ED physicians.  The hospital and the group both claimed the physician was an independent contractor.  The court ruled that there could be no summary judgment on this issue since the physician stated on several occasions during his deposition that he was an employee of the group.  The contract also made the employee join the hospital staff and abide by the bylaws. 

Strong v Kocik

In a rare move the judge overrode the jury decision for the defense and declared a mistrial.  The judge thought the jury verdict went against the great weight of the evidence.  The plaintiff presented to the ED with flank pain and a very high fever.  The ED physician Kocik called the attending physician Strong (no relation) about the patient.  Strong states he was not told about the urgency of the situation and so did not come in.  The patient became septic and eventually lost all four extremities due to gangrene.  This may have all been prevented with early surgery or urinary diversion.  Also the ED physician did not write down kidney stone in her diagnosis.  

Heimlicher v Steele
ND Iowa

The plaintiff presented to the ED at Dickinson County Hospital at 36 weeks gestation, severe abdominal cramps and vaginal bleeding.  The ED physician, Steele, examined the patient and made the determination that the patient would be better served at a hospital 100 miles away with an advanced neonatal unit.  The patient was transferred by ambulance with a nurse.  Shortly after leaving the hospital the condition worsened and the nurse did not communicate this or divert the ambulance.  The baby was stillborn when the patient eventually arrived at the other hospital.  The diagnosis at the original hospital was a potential abruption and the treatment for stabilization was an emergency C-Section. The jury awarded $1.71 million and of that 30% was Steele's portion and the rest was the hospitals.  Steele was an agent of the hospital so the hospital was liable.

Birl v Heritage Care
Ca Ct App

Birl entered Kaiser hospital for surgery and was eventually sent to nursing home A.  He became worse and was readmitted to Kaiser.  He was then sent to nursing home B where again he deteriorated.  Again, he was admitted back to Kaiser for therapy and this time sent to Heritage Care where he again deteriorated and died.  On admission to Heritage the Birl's wife signed an arbitration agreement.  Upon his death the surviving wife and heirs sued in court all the above actors for wrongful death.  Heritage moved for arbitration.  This was denied since there were so many defendants there may be different judgments between the arbitration against Heritage and the law suits against the others.  The case goes to trial.         Top

Medical Rights

Minnesota v Hauser
Trial Court

The judge ordered a 13 year old to get chemotherapy for his Hodgkin's Lymphoma.  His parents have been given a short period of time to obtain a chest x-ray of their son and obtain an oncologist.  The parents stopped chemo after one treatment based on religious beliefs.  The state has custody of the boy but is allowing him to live with his parents. If the chest x-ray shows that the patient is still amenable to treatment, treatment should occur.  If the parents still refuse therapy, the child will be temporarily placed in others care.  The x-ray showed the tumor had grown so the mother and son fled.  It was my hope that she was charged with a serious felony when caught. That did not happen.  The felonious mother and her son returned from California when amnesty for her was granted.  After a hearing the son was sent home and is to start conventional therapy.

Wisconsin v Neumann

A Wausau jury found Mrs. Neumann guilty of negligent homicide in the death of her daughter who had juvenile diabetes.  The mother treated the child with prayer and not fluids and insulin.  She died during a prayer session.  Sentencing is to come later as is the trial of the girl's father.  They both can get sentences of 25 years to life.

North Carolina Medical Board v State
North Carolina Supreme Court

The Medical Board stated that physicians could not assist in the legal execution of prisoners sentenced to die.  This was challenged and the Medical Board lost.  The Board may not do anything to punish any physician who assists in the process of legal execution. The Medical Board originally would allow physicians to be present at execution but not participate, the potted plant, and if they did participate with any verbal or physical activity this might be grounds for discipline. I understand why one may not participate on moral or ethical grounds but I agree this is not a legal issue and if a physician wants to participate he/she may do so without big brother watching over.   

San Diego v California
US Supreme Ct.

The US Supreme Court refused to take the case by the county of San Diego against the California law allowing medical marijuana.  This allows the program to stay on the books and will force the counties to issue ID cards to those who qualify for the program.        Top


Hailey v Blue Shield
To Trial

California has wanted all patients that were denied care by the HMO insurers due to rescission to partake in a settlement.  Almost all patients have refused the state settlement and are suing individually.  This is the first case in the state to come to trial.  Mr. Hailey was insured by Blue Shield until a severe auto accident.  The plaintiff states that Blue Shield then cancelled his insurance due to not listing his true weight and failure to list hypertension and headaches on the original application.  The appellate court has already heard this case and has ruled that the insurer may not wait and rescind coverage at a later time but must do due diligence at the time of the application.  Interestingly, rescission if willful misrepresentation remains legal and at present several bills are winding their way through the legislature to do away with the process.  There was one other case decided in California but by arbitration.  In that case the plaintiff was awarded $9 Million for a delay in chemotherapy.  

In a surprise move, the judge took the case from the jury and ruled that the plaintiff lied on his application filled out by his wife and that Blue Shield did the correct thing by rescinding his policy.  Blue Shield stated that it was not his auto accident that left him with $400,000 in bills that started their look back but his ED visit before the accident.  The wife left out his history of hypertension and chest pains.

Hospitals v HealthNet

California hospitals have agreed to a payment of $1.9 million for HealthNet's rescissions of insurance to patients after the care had been received.  HealthNet also will pay an additional amount up to $3 million to patients for services rendered.  

Coast Plaza Hosp v Blue Cross
Ca Ct App

 The hospital sued the insurer for non payment for a patient.  The insurer moved to send the case to federal court under ERISA.  This was denied by the federal court and remanded back to state court.  The trial court ruled in summary judgment for the insurer.  The court of appeal overruled the trial court stating that ERISA rules did not apply and that the insurer must pay for the insured until the insured is stabilized and must pay all the providers of that care. The case will now go to trial or be settled.  I hope the hospital costs involved were worth the attorney and court expenses.       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.