June 15, 2003 Recent Legal News
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Olszewski v Scripps
CA Supreme Ct.
The state's high court ruled that hospitals may not recover the full cost of treatment against Medicaid patients involved in auto accidents. This practice is preempted by the Federal Medicaid Law sayth the Court in an unanimous decision. The Court also stated that those patients who have had their money taken by the hospitals in the past will not need to be reimbursed by the hospitals. This only affects the current and prospective cases. This also holds true for physicians and other health care providers. Top
Calfee v City Ave. Hosp.
ED PA
The Federal Court ruled that only a physician may obtain informed consent, not a hospital. The Jehovah's Witness patient received a pint of blood and sued the hospital for breach of the informed consent. The court followed a recent Pennsylvania Supreme Court Decision in reaching it's own decision. Top
Goad v Virginia Bd. of Medicine
Va. Ct. App.
The Board placed Goad's license in indefinite suspension due to potentially sexually inappropriate behavior. Goad sued and the lower court agreed with the Board. The Appellate court overturned the decision since the Board used the statute stating the AMA and APA standards of Ethics were to be used as the standard. In fact these are merely guidelines and may not be used as a standard. The Board had no other standard to compare the action and therefore the Board was compelled to dismiss. Top
Ghanem v Pres. Intercommunity
Hosp.
CA Ct. App.
The physician was conditionally reappointed to the private hospital. The conditions were to attend CME courses and not engage in specific disruptive behaviors. The physician did not comply and was removed from the staff following a full hearing. He sued and lost in both the lower and the appeals court. He claimed that he did not get a fair hearing and that hearsay was used against him. The court stated the hearing was fair and the evidence was allowed under both the hospital bylaws and government code.
Chadha v Charlotte Hungerford
Hosp.
Conn. Ct. App.
Chadha had his license revoked. He sued four members of the medical staff for filing false reports to the department of public health. The case was tossed in both the lower and court of appeals due to absolute immunity under the state's common law. Here there was an overlap between common law absolute immunity and statute partial immunity. The upper court ruled absolute immunity applied in this case.
Smith v Ashland
Ky. Ct. App.
A medical Center was in its rights to forcibly remove a Honorary member of the medical staff from a MEC meeting and then remove his staff membership. No fair hearing was offered. The court stated that there were no violations of the bylaws. It sounds like this radiologist needed the well being committee.
Jeung v McKrow
ED Mich.
The doctor was removed from the staff and sued under racial discrimination. He lost like most of these since the hospital was able to show legitimate cause for termination of privileges. In this case there were patient complaints and malpractice suits. The hospital would not allow the physician to call witnesses at the hearing. what happened was the patient's expert refused to leave the hearing when asked by the hearing officer. This cost the hospital the potential for attorney's fees and costs.
Center for Legal Advocacy v Hammons
10th Circ.
The Agency is a designated patient protection system for the Colorado mentally ill. They wanted records for four suicides. The State HHS turned over all but peer review records stating they were privileged. A magistrate went for the Agency, The District Court voted for HHS. The 10th Circ reversed again and went for the Agency. The Agency may have all records and this takes precedence over state peer review protection.
TopUS v Rosenthal
USDC
Ed Rosenthal was convicted in February for cultivating over 100 marijuana plants. This was in Federal Court where the judge would not allow any mention of the medical defense. California has Proposition 215 which allows the cultivation and use of marijuana for medical reasons. In fact, Mr. Rosenthal was growing the marijuana for for Oakland, California patients under contract to Oakland. The jury who convicted him wanted to toss their own verdict out when they found out the truth. Mr. Rosenthal was sentenced by the same judge to one day in jail. The Feds had recommended 21 months. California's Attorney General had recommended leniency for Mr. Rosenthal. Mr. Rosenthal will appeal the verdict since he is still a felon under the verdict. Top
CVS
v Massachusetts
Suffolk Superior Ct.
The People's Republic of Massachusetts voted last year to impose a tax on all prescriptions filled by the state's pharmacies. This was to pay for their give everything to everybody shortfall in the budget. The pharmacies originally passed the tax on to the public but were threatened by the state with fines for doing this simple business solution. The pharmacies struck back by suing the state since they had not complied with federal regs prior to instituting the tax. The Court agreed and the Republic must repay $18 million to the pharmacies. It couldn't happen to a nicer state. Top
Gray v Rite Aid
Maryland Circuit
A jury awarded the patient $250,000 for permanent disability because Rite Aid gave the patient the wrong information about the drug on their patient information literature. The prescription was for Doxycycline, an antibiotic. The instructions stated to take with milk or food, the exact opposite of what is true. She did not get better and when she saw her physician he found the problem. The jury found Rite Aid no guilty of negligence but that the pharmacy had breach an express warranty.
Torns
v Samaritan Hospital
NY App Div
A patient went to a hospital ED for a broken leg. She was admitted by the independent contractor physicians and later sued for the hospital for malpractice. The court stated that a patient would reasonably believe the physicians were hospital employees since she signed consent forms with the physician names and the hospital logo.
Orner
v Mt. Sinai Hosp.
NY App. Div.
The plaintiff sued for malpractice and attempted to obtain the hospital's job performance evaluations of the two physicians. The hospital refused and this case ensued. These evaluations were not used in any peer review context and therefore are fair game. The Court also blasted the counsel for Mt. Sinai for his tactics and poor conduct. Some of the decisions were based directly on the poor conduct of the hospital's attorney. The hospital needs to fire the attorney.
Jenkins
v Patel
Mich. Ct. App.
In another blow for the trial lawyers against the physicians, a court of appeal in Michigan stated that the malpractice caps on non-economic damages do not apply to wrongful death caused by medical malpractice.
Pacheco v Kaiser
Co. Supreme Ct.
The spouse of a dead person may sue Kaiser even though there is an arbitration agreement. The case originally went through arbitration and the arbitor found for the physicians. The Court stated that arbitration violates the Colorado Health Care Availability Act. The Kaiser contract lacked the specific language required by the Act and also the 10 point type. Top
Foong
v Empire BCBS
NY App Div.
Dr. Foong was terminated from the Empire Plan and not given any appeals process. Dr. Foong sued for breach of contact. The Court stated Doctors have a right of of due process in the form of peer review. The Plan may terminate the physician without a hearing but this may be under judicial review. In this case the physician was removed for imminent harm 13 months after an incident and after an investigation by an independent agency that showed sound medical practice. It also seem the doctor was terminated after notifying the Department of Insurance about non-payment. \
Gen.
Emer. Services v Trinity Health
S. Dakota Supreme Ct.
The Supreme Ct. reversed a lower court ruling for Trinity Health. The lower court ruled the physicians breached their contract with Trinity Hospital for refusing to work in the ED after the health system closed a nearby hospital in June 2001. The case goes back for trial on a $1.9 million damage case sought by the ED group for contract termination for having to work different shifts and duties than when the other hospital was open. Top
US v
Anesthesia Service Medical Grp.
Settlement
The FTC filed against the Anesthesia Medical Group and Grossmont Anesthesia Services Medical Group for fixing fees. The two competing anesthesia groups are both on the staff of Grossmont Hospital and also take call. Grossmont did not pay anything to the groups for taking call and seeing uninsured patients. The two groups got together and decided on the stipend they would require to see these uninsured patients. The hospital did not complain but someone alerted the FTC. The bad boys got their wrists slapped and got a 20 year consent decree. They also never got their money. I hope they did this without an attorney because the attorney may be open to legal malpractice.
US
v Weinbaum
Indictment
A grand jury indicted the CEO of Tenet Alvarado Hospital in San Diego for illegally paying physicians to refer patients to his hospital. CEO Weinbaum was accused of illegally paying over $10 million for relocation expenses to physicians to join other practices that were good hospital referrers. Tenet states the allegation was based on the testimony of one "disgraced physician" who testified to not get jail time for Medicare fraud. However, the indictment is damning.
US v Southwest Physicians Assn.
Settlement
The Association of 952 physicians in three Texas counties have settled price fixing charges against them by the Feds. The Assn. rejected health plan terms outright without asking its members (messenger model). This Assn. has been in business for 20 years.
US v Centura Health
Settlement
Centura
agreed to pay $2.3 million for years of poor coding especially in pneumonia.
Nine Centura Hospitals were also charged with false lab billings. The fine
was so low since the system voluntarily reported the
problem. Top
Rubin
v Chilton Two
pathologists with indefinite term contracts with Chilton Hospital but with 90
day no-cause notice of termination had their contracts terminated. The
hospital planned on entering into an exclusive contract with another pathologist
who was 53 years old. The two pathologists being terminated were 63 and 68
years old. They sued for age discrimination and the lower courts said they
were independent contractors and had no standing to sue. The Appeals Court
reversed. They agreed they were independent contractors but they were
still protected under the New Jersey Law Against Discrimination due to their
age. Back to court for the
trial. Top Thomas
v Christ Hosp. The patient's
husband brought the patient tot the ED for strange behavior. She had
started recently on steroids for a respiratory condition and had steroid induced
psychosis in the past. The patient was seen by the ED physician and a LCSW
who both offered her voluntary admission which was refused. She was told
to discontinue to take her steroid and to contact her physician. She saw
her internist several days later who gave her a sedative and told her not to
drive. She drove and was involved in a fatal accident. The hospital
was sued for EMTALA non-stabilization. The lower court ruled that the
patient was stabilized on discharge. The 7th did not agree. They
said it is a fact that needs to be determined whether or not she was stable at
the time of discharge. The patient had two experts to testify that she was
not stable when discharged. This was not enough. The ED physician
however stated that he favored admission over discharge due to the potential of
harm to the husband. This was enough to create an issue of fact. To
Court for trial. Top
New Mexico v Henry, MD The state has charged Dr. Henry and
his wife with seven counts of first degree murder. The doctor was
charged with giving large doses of narcotics (up to 250 pills) at a time to
patients. Some of the patients overdosed. The physician records apparently
show no exams on some and inadequately on others. The wife was the
receptionist.
US v Guidant Corp.
NJ Super. Ct.
7th Circ
Indictment
Settlement
Guidant Corporation has pled guilty to not telling the
FDA about problems with their Endovascular aortic aneurysm stent delivery
system. This caused deaths and many injuries. The Corporation
has been fined $92 million for their conspiracy, the largest fine for this
ever. The company is also being sued by thousands of patients for
injuries caused by their system. The problem got so bad that the
companies salespeople started to come up with their own method of handling
problems. This led to other problems and some deaths. Several
years after approval the company revised their delivery
system. Top
Antelope Valley Hosp v LA
County A judge has refused a request for
an injunction by Antelope Valley Hospital against the County of Los
Angeles. The County is planning to close multiple areas including High
Desert Hospitals in Lancaster, California. Antelope Valley believes
rightfully that the closing of the hospital will dump more patients on them,
which they cannot
afford. 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.
Injunction