June 15, 2006 Recent Legal News



Peer Review







US v Fenster

Dr. Fenster has been cited by the FDA for nine counts of failure to follow safety rules, get informed consent  and maintaining incomplete records.  The University of Arizona has banned him from conducting research on humans.  Dr. Fenster was doing experiments with an experimental pacemaker to help heart failure. 

Spiering v Nebraska

 A Nebraska couple is fighting the state regarding the drawing of blood in a newborn.  They are not fighting the tests but the idea of a heel stick.  They contend that the pain and trauma of the blood draw may cause the child to have later mental problems.  This has already been decided by the Nebraska Supreme Court which the Federal Court will use as precedent and the parents will lose.  A judge has agreed to delay the heel stick on their infant to soon after seven days, a reasonable decision.  

Doe v Doe
Illinois Superior Ct.

The mother says yes and the father says no to the eight year old child being circumcised.  The parents are divorced and the non custodial father under the decree has a say in the medical treatment.  The child has had five bouts of penile inflammation according to the custodial mother.  The father states he does not any doctor to butcher my son.  The court wants more information and no decision is imminent.  A side issue is that the mother has remarried a Jewish man.       Top


US v Nosovsky 

Dr. Nosovsky has been found guilty of fraud in billing for injections for AIDS on people who didn't need it.  He and his brother still face criminal trial on conspiracy to allow an unlicensed person to do surgery.  Dr. Nosovsky allegedly allowed his brother, an unlicensed person, to perform breast surgery.  Dr. Nosovsky was taken into custody immediately after the trial verdict and could be sent to prison for 10 years for each of the infractions and an additional 5 years for conspiracy.  

Patients v Kaiser

 A class action law suit against Kaiser Permanente has been filed in San Francisco state court on behalf of all the patients that have been injured by Kaiser's now defunct transplant program.  This is only one of several suits against Kaiser for their transplant negligence.  

Brockovich v Hospitals

Yep, it's the same Brockovich of movie (Julia Roberts) fame. She is the shill (lead plaintiff) for a suit against hospitals for billing Medicare for treatments they caused by their own negligence or medical errors.  The suit wants Medicare to be reimbursed for the alleged overpayments.  What does she and the attorney get out of this?  Why, the court will award fees, usually millions of dollars. 

Georgia v Topel

Two brothers, Eric and Christopher Topel were sentenced to jail for healthcare fraud.  They billed Blue Cross for doing surgery on backs using an experimental procedure and billing with a real procedure code to get paid.           Top

Peer Review

McLeay v Bergan Health
Neb. Supreme Ct.

The Nebraska high court stated that the hospital is immune from suit on damages from the physician under HCQIA.  They are not immune from suit under equitable claims. The physician was suspended after he did not show for a peer review hearing regarding his quality of care.  There was no problem showing the hearing was for the furtherance of the quality of care and the hospital was immune from damages under HCQIA.  He could sue for reinstatement of privileges, an equitable relief.  The case was remanded for the equitable remedy trial. 

Mueller v Columbus Cmty. Hosp.
D Neb

Dr. Mueller sued the hospital for revoking his OB privileges.  He said there were inadequate safeguards and inadequate notice of the hearing.  The hospital won dismissal of all charges under the HCQIA.  The court stated that the law does not have a private right to sue (an untrue statement). See Case Above

Kibler v Northern Inyo
Calf. Supreme Ct.

 There is a split of opinion in the California Courts of Appeal as to the nature of peer review.  This also spills over to a fight between the California Hospital Association and the California Medical Association.  In O'Meara v Palomar the 4th District Court of Appeal ruled that the peer review process is private so is not qualified as an official proceedings for anti-SLAPP protection.  The court allowed the suit by the physician against the hospital for defamation to go on.  The same month, the same District but a different Division ruled in the opposite.  In KIbler v Northern Inyo the court stated that peer review is an official proceeding under the California Codes and therefore is protected under the anti-SLAPP law. That case against the hospital was dismissed.  Due to the conflicting opinions, the Supreme Court will soon hear oral arguments and then decide the case.  Obviously the CMA is in favor of the physicians being able to sue the hospital for illegal peer review and the hospitals are not that thrilled about the prospect.

Desert Valley Hosp. v Waltschies
Ca Ct App

 In another SLAPP case the hospital sued three employee whistleblowers for multiple business torts.  The trial and the court of appeal both dismissed the suit under the anti-SLAPP provisions of the California Code.  The suit was against the employees using their free speech rights and their attempting to report unsafe medical conditions to appropriate agencies.  The court stated that the hospital did not reach its burden that they might prevail at trial.

Kadlec Med Center v Lakeview Regional

Dr. Berry, an anesthesiologist, was asked to leave his hospital and practice group in Louisiana due to Demerol usage.  He was not reported to the data bank.  Dr. Berry then applied to Kadlec Medical Center in Washington and received glowing letters of recommendation from the hospital and the medical group.  After being placed on staff he injured a patient costing the insurance company $8.5 million.  Kadlec and the insurance company found out about his previous addiction and sued the original Louisiana hospital and medical group for their less than candid recommendations.  The hospital and insurance company in Washington won a $4 million verdict for fraud and negligent representation.  

Iopollo v Association of Neurosurgery

A Baton Rouge neurosurgeon, Dr. Iopollo, testified in a malpractice case two years ago in Florida.  Following the testimony the two Florida neurosurgeons reported the Louisiana neurosurgeon to the Association of Neurosurgery who wanted to sanction him for two years with an organization suspension.  The rationale was that Dr. Ioppola's testimony demonstrated a lack of adequate subject matter knowledge and that he acted as an advocate and not an unbiased witness.  He therefore violated the association witness testimony guidelines.  Dr. Ioppolo also alleges that the Florida physicians circulated that report to the hospitals in Baton Rouge as well as filing formal charges against Dr. Ioppolo with the Louisiana Medical Board.  Dr. Ioppolo has sued in Federal Court to halt the Association of Neurosurgeons from suspending him.    

Lustgarten v N. Carolina Medical Board
NC Ct. App.

Dr. Lustgarten, a Florida neurosurgeon, was disciplined by the North Carolina Board of Medicine for his testimony in a med mal case.  In 2002 his license was taken away for professional misconduct due to questionable testimony in a med mal case.  The decision was appealed to the NC Superior Court who agreed with the physician and the Board.  The doctor went on to the Court of Appeals.  The Court ruled unanimously that the doctor should get his license back.  This stops an action in Florida and another by the American College of Neurosurgery.  The Board has not decided to appeal to the State Supreme Ct.        Top


Multicare Physicians v Wong
Conn. Superior Ct.

Multicare hired Wong to work for them.  He had a restrictive covenant that would not allow him to work within 15 miles of any of the Clinic's four offices.  The Clinic split and some of the former physicians took over two of the offices.  Wong then did part time work for both corporations.  The original corporation sued to keep him from working with the new corporation.  The court said since it was a new corporation the fifteen mile radius did not apply to those two offices.  I'm hoping that Wong then told his original employers to take a flying leap and continued to work at the new offices.

NY Medscan v NY University

Medscan and an individual radiologist were terminated from an exclusive network run by NYU.  They sued the University under antitrust.  Dr. Litt, a neuroradiologist at NYU was on the Board of CCN a radiology benefit management company that controlled 3.5 million people in New York, a dominant position. Dr. Litt threatened Medscan that if a new contract was not signed on the terms wanted by NYU, they would be terminated.  The contract was not signed and Medscan was terminated from CCN.  Litt also told the NYU physicians not to refer to Medscan and he also instituted a policy of not delivering any scans or reports done by Medscan to any NYU physicians.  Medscan filed suit for antitrust in federal court against the University, CCN and Dr. Litt.   CCN was dismissed but the other two have lost the initial round and the case can move forward to the summary judgment portion.  

Hostrup v Exempla Healthcare
To Be Filed

Nurse Barb Hostrup was fired from the not exemplar Exempla Healthcare after speaking before the legislature on whistle blowing protection for nurses. The organization states it is okay to air ones views to accreditation boards and internally but not to the government.  Hostrup had no poor performance until after her testimony when the hospital solicited adverse information, true or not, about her. This sounds like some peer reviews I have seen.

Woods v Kaiser
CA Superior Ct.

Kaiser is truly not doing well lately.  The rush of bad publicity continues.  Kaiser placed Dr. Woods on administrative leave and gave him a pay reduction for his raising concerns about the care at the Kaiser Bellflower Medical Center.  He complained about the filthy examination rooms in the ED, delays in the care of patients and a shortage of supplies.  The judge ruled in a law suit that the original arbitration language was unconscionable and therefore void.  Kaiser has since changed their arbitration language.  Following their public humiliation and loss of $200,000 for past economic loss, Kaiser stated that they encourage their people to advocate for quality health.  I used to work for Kaiser and I know when I did advocacy, I got a call from a head of a Department telling me not to do it anymore.  Since I was only a part time employee I did not comply.  Woods has been working at the Fontana Kaiser and during the trial they voted to oust him as a partner.  A new trial is in the offing.  

Moores v Madvig (Kaiser)
CA Ct. App.

In an unpublished opinion the court stated that Moores, a CV Surgeon, after having a bad outcome on a case was placed by Kaiser on a leave.  During that time a study of his practice was done by a single physician.  Following the study it was decided to remove Dr. Moores from employment.  He was summarily suspended without pay.  Moores had a hearing by a peer review panel and then the Board of Trustees.  He lost both.  He then sued under a writ of mandate which found he had a fair hearing and denied the writ.  Moores then sued in trial court and the case was dismissed since the issue had already been decided in the writ,  Moores appealed the trial court decision and also lost at the court of appeal for the same reason.     Top


Lamoreux v Oreck
Wis. Ct. App.

A patient who had a nerve injury during a surgery by an independent practitioner sued the hospital under vicarious liability.  He, of course lost.  The patient did not show that there was a master servant relationship and the patient also did not choose the hospital the physicians did.  Another attorney bites the dust financially.

In Re Farkas
Bankruptcy SD Fla.

A neurosurgeon who had two med mal suits pending filed for bankruptcy.  The claimants asked the court to dismiss the suit since it would not allow the Florida "three strike" rule to take effect and it was filed in bad faith.  The Court ruled for the physician and stated that there is a good faith filing requirement in Chapter 7 bankruptcy and that the physician has the same right as any other Floridian to file for bankruptcy. 

Williams v Kaiser

Williams came to Kaiser with an ankle injury and was taken to surgery to fix the fracture.  The same day, after surgery, she got second and third degree burns of the back and buttocks.  It was presumably due to placement of the electrode pads. The burn took seven months to heal.  She arbitrated (Kaiser members are not allowed to sue) and won $264,000. The arbitor found res ipsa loquitor to apply as she was in the hands of Kaiser when the event happened.  The plaintiff (claimant) wanted $125,000 and Kaiser offered $5000.  Since she won more than the offer she also gets interest and costs, an additional $25,000. The Kaiser attorney should have known better.

Patients v Oregon Health 
To Be Filed

Multnomah County, Oregon, is attempting to locate about 5000 people who received improperly stored vaccines which may be of limited value.  This was over three years.  Those who received the questionable vaccine were children and people with HIV. 

Midler v Benjamin
Conn. Ct. App.

Midler had a chin procedure by Dr. Benjamin and was given informed consent but she nor her parents were told of the possibility of  permanent nerve damage.  The trial court would not allow testimony from either the 17 year old plaintiff or her parents regarding whether she would have had the procedure if she knew about the nerve problem.  The rationale was lack of life experience for all.  The Court of Appeal overturned the lower court as tot the parents but then ruled that it was harmless error.  The reason was the defense expert testified that he had never had a patient turn down the procedure if they knew about the extremely rare problem. 

Kozano v Scripps
Ca. Ct. App.

In an unpublished opinion the court of appeal ruled that the statute of limitations had not run out on the plaintiff for suing the providers who cared for a driver of another car which was involved in an accident.  The accident happened two years prior to the filing of the suit, beyond the statute.  The appeals court stated physicians errors related back to the original accident and so were timely.  It is easy to see why this is not a published opinion. 

Patients v North Central Baptist
To Be Filed

The Texas hospital has disclosed it has Legionnaires Disease.  To date there have been ten people with the disease and three have died.  The deaths came in people who were already sick.          Top


Haw v Idaho State Board of Med.
Idaho Supreme Ct.

In yet another blow for the physician against the medical board, the Idaho Supreme Court ruled that the board could only bill Haw for the costs and attorney fees of that part of the case they won, not the entire case.  The board must do a meaningful analysis to come up with the right amount.  Originally the board filed a 57 page complaint for 23 counts.  A hearing officer found that the board only won one of the charges.  The board then awarded itself $115,000 for its costs and attorney fees.  There was no apportionment.  There now will be. 

Chalifoux v Texas Medical Board
Texas Ct. App.

Texas wanted to remove Dr. Chalifoux's license.  The doctor moved for a trial and an ALJ  ruled that the physician violated medical standard of care in three patients.  The upper court agreed that there was enough evidence to support the findings of the ALJ and there were no procedural problems. There was a small matter of two of the physicians who voted for the doctor to lose his hospital privileges also was on the Texas Medical Board that decided his fate.  Again no procedural irregularities for Texas.  He lost.      Top


Indiana v Snook

Dr. Riley Snook of Indianapolis, a neurologist, has been arrested and charged with theft of prescription and illegal possession of controlled substances.  He has apparently confessed to skimming pills from his patients for personal use. 

Ohio v Feldman

 Dr. Bruce Feldman and his wife Michele of Shaker Heights have been indicted for 250 new counts of drug dealing and the prior charges of racketeering, trafficking and money laundering.  The office had ordered medications in bulk and repackaged them to sell to patients without any significant physical exam according to the charges.  To date, the police have seized $650,000 in cash found in the home, a Bentley and a Corvette.  They have also frozen $1.2 million in investment assets.  This leaves no money for attorney fees, which is the idea.  

Indiana v Williams

Jennifer Williams, a certified non-nurse midwife has pled guilty to the unlicensed practice of midwifery after an infant she delivered died.  The law states that delivering midwives must be nurses.  She was sentenced to one year probation.  She can not practice midwifery while on probation which is stupid since it already against the law.        Top


Abernathy v Valley Med Ctr.
WD Washington

A deaf patient sued a hospital who brought in an interpreter to the ED but not the next day in the hospital.  They did have a nurse who could sign and a pad and paper.  This wasn't good enough for the patient or the judge and the court ruled against the hospital on summary judgment.  A jury should decide what a reasonable accommodation is.  

Midstate Med Ctr. v Doe
Conn. Super. Ct.

The hospital had tried to discharge a patient to a nursing home but the patient would not leave.  The hospital then sued the patient for an eviction.  The court stated that the patient's condition had stabilized and the hospital does not have a duty to permit their facilities to be diverted to the uses for which hospitals are not intended.  Bye Bye Patient.      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.