June 1, 2013 Recent Legal News




Peer Review and Employment




Doe v IRS

According to the complaint filed the IRS raided a company in mid-March and took 16 million medical records of 10 million people without a valid warrant for the records nor authorization.  The filing counsel wants $25,000 per record.  If there is any semblance of truth to this accusation the IRS will have no money not only to collect the Obamacare tax but income tax as well.

Patients v Kaiser
To Be Filed

The Oregonian reports complaints about Kaiser's involuntary HIV screening.  Kaiser had to apologize to 6500 people but kept the information.  The Oregon legislature passed a law that allows for oral and written consent and an ability to opt out.  Kaiser conveniently forgot the last step.  Unfortunately for Kaiser the law also states that if not given a chance to opt out the patient may sue (not arbitrate).  There is also a federal recommendation by the rightfully maligned Preventative Health people that screening should be done, however, only on high risk patients.

Leon v Watsonville Hosp. Corp
Ca. Ct. App

In a case filed but not decided prior to the California Supreme Court's ruling in Prospect Medical Group v Northridge that ED physicians can not balance bill patients who are not part of the ED physician's health plan contracts the lower and court of appeal upheld the Supreme Court decision.  The patient's attorney attempted and failed to make this into a class action suit against the hospital instead of suing the physician group.  The faulty rationale was that the hospital was responsible for their independent physician's billing.  I hope the attorney had this on contingency fee and lost a bunch of money.

Los Angeles v Rawson-Neal Psychiatric Hosp

Los Angeles has sued the psychiatric hospital in Los Vegas that for years dumped about 1500 patients in several states.  The patients were put on buses, given enough Ensure and meds for the trip and sent on their way alone.  There have been about 150 patients sent to LA over the years.  LA is filing criminal charges against the facility by virtue of their ordinance.  San Francisco will go after them financially for any care given to the patients.  In any case this will cost the state of Nevada millions of dollars in fines and court decisions.

CMA v California
9th Circuit

The 9th Circuit has determined that California will have fewer physicians seeing Medicaid patients with their ruling that the 10% cut to providers is legal.  The cuts include both providers and hospitals or clinics.  The full court declined to review the panel decision for the state.

Planned Parenthood v Indiana
US Supreme Court

The high court has refused to hear an appeal from the 7th Circuit that stated Indiana could not block the funding of Planned Parenthood because they perform abortions.  This allows Medicaid to fund the organization.  

Dow Jones v US
Federal Judge

Dow Jones sued and won to dismiss the injunction placed on federal information on local physicians since 1979.  This means that unless the AMA or another organization appeals the ruling information may become public.        Top


Barson v Maryland Bd. of Physicians
Maryland Ct. App.

The anesthesiologist was accused of sending prescriptions via the mail for narcotics on patients she never examined.  Her license was suspended and she and the Board entered into a consent agreement.  After it was signed she asked that it be amended to allow her to have a DEA license.  The lower court as well as the court of appeals both agreed she was bound to the form with "no backsies".

Mir v Medical Board of California

Dr. Jehan Zeb Mir had his license suspended for quality reasons for the treatment of a patient at Pomona Valley

Merwin v State Bd. of Registration
Missouri Ct. App.

Dr. Merwin voluntarily entered a rehab program for drug and alcohol problems.  He was allowed to work as long as he was in the program.  He left the program and could find no program to fit the criteria set for him by the medical group.  The medical board then put him on probation for five years.  He sued and both won and lost.  The board upheld the five year probation but not for the reasons the board wanted of unprofessional conduct.  They could put him on probation due to his inability to work because of going to a program.        Top


Crawford v S. Carolina Dept. Social Services

 The adoptive parents of a hermaphrodite child sued the Social Service Department for doing a sex operation on the child before the child could point which way his orientation is.  The operation removed the male genitalia but when he became older, age 8, he thought of himself as male.  The suit is for unnecessary surgery since it should have been delayed.  The suit also names the hospital where he was born and the hospital where the surgery was performed.  

Wayne County Hospital v Jakobson

Why would people want to work at this hospital?  The hospital sued the radiologist physician who was thought of as a hospital employee by the patient.  The physician missed a mass on a mammogram but read it correctly the following year.  The patient had a Stage 1 breast cancer at surgery.  She sued the radiologist and the hospital and the hospital paid $1 million.  The hospital is now suing for the money back.  The court said that the physician was an ostensible agent but since the negligence of the hospital was passive indemnity was possible.  There needs to be a trial and if a jury finds the radiologist liable then he owes the hospital the money.  Nobody as yet mentioned that the treatment is the same since the cancer was Stage 1 when missed on the original mammogram.  Is there an injury?

Estate of Ray v Forgy
NC Ct. App

The plaintiff's wife died post-operative due to a surgeons mistake.  The plaintiff sued the surgeon and the hospital.  The hospital won summary judgment on the issue of the physician being an employee.  The plaintiff and his wife both signed documents stating the physician was an independent contractor and had seen him in his private office.  The hospital could be sued for corporate negligence since the physician did state on an application form that he had been sued for mad mal and the suit was pending.  He was never asked about the suit so it is a matter for the jury to decide whether the hospital was reasonably diligent in looking at the physician's qualifications.

Providers v Indiana Dept. of Insurance
Indiana Superior

The case was certified for class action.  The insurance fund has $30-$40 million sitting in it gathering dust that will not be returned to the physicians who put the money in the fund.  No public money is involved.  There are about 600 physicians who could get the money.

US v Daniel
Convicted & Sentenced

Dr. Christine Daniel, of Los Angeles, was sentenced to 14 years in federal prison and had to forfeit almost $1.5 million for bilking cancer patients.  She talked them into taking her herbal medication instead of therapy that could help the patients and in at least one case cure the patient.  The medication consisted of beef extract flavoring and a sunscreen preservative.  She charge about $100,000 for the herbal medication treatments.

Medina v Hochberg
Massachusetts Supreme Court

In an interesting case, Medina was injured by another person who had a brain tumor being treated by Hochberg, a neurologist.  The patient had a seizure and crashed into Medina injuring him.  The high court stated that only mental health professional has a duty to warn another without actively doing something like prescribing medications.  Since there was no duty the case against Hochberg was dismissed.

Falls v Silver Cross Hospital
ND Ill.

Falls was injured in an auto accident by another negligent individual.  The hospital had accepted the payment by Falls' insurer as payment and then sued Falls for the remainder of the bill from his payment from the negligent party.  The court said no in this class action case.        Top

Peer Review and Employment

Woody v Covenant Health
ED Tenn

A nurse shift leader was told that she and the other like suited leaders would need to reapply for their positions.  She was not chosen and a younger person was.  There was a flyer that the hospital wanted to go younger.  Woody lost her position as shift leader and kept a job as a staff nurse.  She sued and in summary judgment she won against the hospital on the age discrimination but lost the request for punitive damages.  This is another sign of poor legal leadership in a hospital or lack of the CEO asking for legal input prior to doing something so stupid.

Roger v Corvel Healthcare Grp.
Ca Ct App

An orthopedic surgeon was in a network that took worker comp claims.  His treatments were routinely non-standard and not approved so he lied and coded then falsely so they would be covered.  He was eventually terminated.  He found a lawyer that would take this losing case and of course lost the breach of contract case.

Shenoy v Charlotte-Mecklenburg Hosp.
4th Circ

A pathologist was terminated by his medical group and sued the hospital.  The hospital, as in the contract with the group, asked the group to remove the physician.  They did and offered him another position but he refused.  The hospital asked for his removal after he criticized them openly in a meeting which he was present due to his position as chief of quality improvement.  The court said remarks made by someone in an official capacity were not protected by the First Amendment.  The hospital won all counts of summary judgment.

In re Methodist Dallas Med Ctr.
Texas Ct App

In an unusual ruling the court agreed with the hospital that an incident report regarding a visitor who fell while in the hospital was privileged under a medical committee.  The rationale was the employee who filled out the report was instructed to not keep a copy and give the original to risk management and the report then went to the quality review committee of the medical staff.  The court stated that since the report was not prepared during the regular course of business it was protected.

Jaffe v Corona Hospital
Ca Jury Trial

Respiratory Therapist Allen Jaffe worked at the hospital for ten months and was terminated.  The hospital stated it was for poor performance and Jaffe contended it was for reporting the hospital to OSHA for cross contamination issues.  The issue went to trial and the jury believed Jaffe.  He was awarded $514,000.  They state they will appeal but won't.  They will settle instead.  The hospital is also in a legal fight with their nurses who voted to unionize and the hospital is contesting the election.

Adiemeli v Loretto Hospital
 ND Ill

 A nurse working at the hospital less than 12 months was terminated and sued for ADA violations.  In summary judgment the nurse lost all issues.  She had not worked long enough to be covered by the hospital's Family Medical Leave for her injury.  She was injured on the job and was terminated with the OK to reapply after she was medically able.  

Pal v Jersey City Medical

 A resident was not given a verification of her residency and sued for lack of due process.  She lost since the court ruled she had no protected property right.

Janson v Summit Medical Group
Ky Ct App

Dr. Janson sued his medical group for wrongful termination and they countersued for unjust enrichment. The problem with the suit was it lost in summary judgment due to the fact that the attorney for the physician could not read well.  The medical group lost its bid to recoup the overpayment of the physician's severance pay.  They filed the countersuit four years after the fact and they were the ones who had all the information and screwed up.       Top


Doculan v Bayonne Med Ctr
Trial Ct.

Doculan was a technologist at the hospital for about 20 years when a new supervisor was hired.  Doculan did not believe the new supervisor had the proper credentials for the job and complained.  After the complaint he was reprimanded several times which had never happened prior and finally fired.  He sued and won $80,000 in lost wages, $60,000 in emotional distress and $2 million in punitive damages.  It turns out that the supervisor was actually an employee of another company that was hired by Bayonne to provide supervisors.  That contract was cancelled and Doculan's complaint to the state showed that indeed the supervisor did not have the required credentials and she was removed.  The hospital will now appeal when it could have just done due diligence in the beginning and kept a good employee and it's money that is now being spent on unneeded legal fees and payments.

US v Las Vegas Urology

The large urology group was hit with a $1 million fine for allegedly misbilling Medicare.  The group also had to sign a consent decree.  There was no agreement with the allegations of the Justice Dept. and the Justice Dept. did not say their claims were not well founded.

US v Tuomey Health
Jury Verdict

Federal prosecutors are pressuring the South Carolina rural hospital to settle the case against them for illegal kickbacks.  The case has already gone to trial and the US won a jury decision.  The feds are seeking more money than the hospital takes in in a year.  This will bankrupt the hospital.  A settlement of 1/4 that amount may be possible.  They are the only hospital in their locale.        Top


US v Idaho State University

The University paid $400,000 fine in the first HIPAA case of the year for having a disabled firewall for several months.  Approximately 17,500 medical records were potentially compromised.  ISU also must do a two year corrective action plan.

Patients v Jackson Memorial 
To be Filed

Miami's Jackson Memorial has lost boxes of medical records of about 1400 patients that were scheduled to be made into electronic records.  The paper records, unlike electronic ones, do not have financial information, only medical information.  They are now going to train their people on the correct way to do things.  Nice to do it after the train has left the station.        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.