March 1, 2013 Recent Legal News

Peer Review and Employment






Peer Review and Employment

Fitzgibbons v IIHI
Jury Verdict

Dr. Fitzgibbons was the prior chief of staff of Western Medical Center who sued IIHI of Santa Ana, California, and won.  Later, the CEO, Bruce Mogel, with the knowledge of the Board had planted a gun in Dr. Fitzgibbons car and called the police stating the physician had waved the gun in traffic.  The physician sued the hospital parent IIHI and won $5.7 million.  Stupidity knows no boundaries.  The Board was stupid originally and again this time.

Chi v Loyola Univ. Med Ctr
ND Ill.

Chi graduated from a residency program and when he asked for a recommendation for a new position the director checked the box that he could not recommend the resident for the position.  Chi sued for multitudes of causes but the only one left to come up on appeal was defamation.  The resident lost on two rationales.  The first was that even if Loyola was not a state University it received state funds in the form of Medicaid and as such was a state actor.  The second was the release signed by Chi.  He had complained throughout his residency that the head had made false statements against him so he must have known that when he signed the release that negative statements would have been made against him by the head of the department.  This negated the defamation claim and showed that he knowingly singed a release that may be detrimental.

Chaudacoff v Univ. Med Ctr
D Nev

The physician sued the university for suspending his staff privileges which in turn cost him his professorship.  The discovery was rancorous as he wanted the financial information of the individual physicians who he was suing as part of his suit was for punitive damages.  The court agreed with the physician and allowed several years of financials to be discovered.  Both parties requested sanctions and the court decided that both behaved badly and therefore offset so no sanctions.

Jest v Archibald Med Ctr

The plaintiff, a black RN had a long history of disciplinary and corrective actions.  She was finally terminated.  She sued for race and gender bias.  Of course, summary judgment was awarded to the hospital.  Her attorney tried to state that white nurses with disciplinary actions were not terminated but they did not have the lengthly poor history as the client.  A physician would have been terminated after looking disparaging at an administrator.

Nacogdoches Heart Clinic v Pokala
Texas App Ct

After over a dozen years in practice together two cardiologists disagreed over the care of a patient and one left to set up a nearby office.  They were both employees of a two man corporation with a non complete clause that stated the the leaving physician could not practice within ten miles of the town.  The clinic sued the departing physician and the court ruled that the non compete clause was illegal for several reasons.  The first was that the town would be hurt if one of the two left so it was against public policy.  The other was that the non complete stated that the leaving physician could not practice any type of medicine not just cardiology so was too broad.

Hill v St. James Hosp.
ND Ill

In the era of stupid law suits this may head the list.  A Black female nurse was let go when the cardiac unit she was working was disbanded.  She was offered other positions but refused and sued for discrimination.  Of course, she lost.  Think of the money wasted on the stupid suit.

Chaney v Providence Hospital
Washington Supreme Court

It seems unfathomable that he case made it this far.  A technician was on FMLA and when he was able to come back had a physician's note stating he could return to work "as soon as the Employer allows".  He was fired and guess what he sued.  Guess again, he won.  The high court told the hospital after it wasted a lot of money that instead of firing the technician it should have sought clarification from the physician. Hospitals also have very stupid attorneys.        Top


Forsythe v Advocate Health
D Ill

The patient sued the hospital for injuries suffered while a patient at the hospital.  He filed within the statute of limitations and then later added two other physician defendants.  The hospital fought this and rightfully lost.  I wonder where the hospital gets its attorneys.  The court rightfully said this relates back to the original alleged wrongful act and therefore is OK to amend.

Patients v St. Joseph London Hospital

Hundreds of law suits have been filed against the London, Kentucky, hospital and their cardiologists for doing unnecessary heart procedures.  The patients claim that the hospital and their cardiologists conspired to do unnecessary cardiac stent procedures.  The feds are also investigating the same people for the same thing.  The State Medical Board is also investigating the physicians involved with some possibly losing their licenses.  The parent company CHI has already agreed to pay the feds a fine of $22 million for its Towson, Maryland hospital doing the same thing.

Mays v Bracey
WD La.

Mays presented to the ED for slurred speech, weakness on one side of his body and headaches.  He was examined and released.  The next day he presented to a different ED and was admitted for a stroke.  He sued the first hospital under EMTALA.  He lost since he did not follow the medical malpractice rules and the court also ruled that EMTALA is not a federal malpractice law.  He did not show that he was treated any differently than others with insurance.

Patients v Johns Hopkins

This suit is going to cost the hospital a ton of bad publicity plus a huge amount of money.  Nearly 100 women claim that a gynecologist secretly taped or photographed them during their exam.  The gynecologist committed suicide.  The case will be interesting from a legal aspect in that their may have been no publishing to any third party of the pics and the women will need to identify which picture is of them.  The hospital will probably be held negligent in failing to protect the privacy of it's patients if it can be shown that the pics were taken in the scope of employment.  Dr. Levy, the physician in the center of the claims, was turned in by a colleague and let go four days later.

Bailey-Gray v Martinson
Ark Ct App

The patient sued for medical malpractice but the expert did not reference the local standard of care.  Arkansas does not go by a national standard of care but a local one.  The case was summarily dismissed.  Attorney malpractice?

Reed v Rodante
ND Ind

Reed went to Dr. Rodante for abdominal and groin discomfort.  He was diagnosed with a sexually transmitted disease and this was told to his employer.  The patient sued under HIPAA and not medical malpractice.  The court agreed that the unauthorized communication was a patient privacy issue and not medical malpractice.  Therefore, a prior to suit review by a medical panel was not necessary.

Gross v Ethicon

Although not a true malpractice case this is the first jury trial to come back in the hundreds to follow for the use of vaginal mesh by Ethicon, a subsidiary of J&J.  The jury awarded Gross $3/5 million for economic and non economic damages.  They will now rule on punitive damages.  The jury did find that the company did not defectively design the mesh and did not make fraudulent misrepresentations to the surgical community.  The story did not state what the damages are based on.        Top


US v Natale

Dr. John Natale of Arlington Heights, Illinois, has been in prison for three months of a ten month sentence.  The case is being appealed for good reason.  Natale was convicted of fraud for a operative report ten years old.  He made a mistake in his dictation and coded the operation wrongly due to the mistake   Technically, he committed fraud but in reality he did nothing that every other surgeon has not done at least once in their career, erred in the op report.  What his case is saying is that every person who dictates or writes an operative or other procedure report better read it several times to make sure there is no error.  This will create chaos at the hospitals as no medical record will be deemed complete and billable until the procedure doer reads over his report very carefully.  The hospital will then get on the physician and potentially declare the physician disruptive for interfering with the orderly hospital routine.

US v Gills
MD Fla

In a fascinating whistleblower case the physician did a cataract operation on the whistleblower physician.  Preop he did a bilateral comprehensive eye exam.  Post op seven days there was a problem with the IOL and another procedure needed to be done but not in the operating room just in the physician's minor procedure room.  However, prior to the readjustment of the IOL another comprehensive eye exam was done and billed for.  This was wrong but the government attorney was an ass as he also claimed that the repositioning of the IOL was not necessary as the astigmatism could be corrected by glasses.  This was true but just a stupid comment.  The court would not allow a summary judgment by the physician but is allowing the case to go to trial  Unless the government can show this was a routine occurrence they may get $100 and the whistleblower all of $5.

US v Yassin
SD Ill

Dr. Mahmoud Yassin is not bright.  He pled guilty of obstruction of justice for giving a FBI agent a progress note for an office visit that never occurred.  He will be sentenced later and faces up to 10 years in jail.  

US v Aymat

Dr. Roberto Aymat of New York City pled guilty of Medicare fraud for billing for AIDS medicine either not required or never given.  Three others have already pled guilty.  Sentencing is in June.        Top


FTC v Phoebe-Putnam
US Supreme Court

The Court unanimously voted for the FTC in the lawsuit against the merger of two hospital in the same community of Albany, Georgia.  This will make other hospitals look to antitrust as they attempt to get together for ACOs.  Although one of the hospitals was a county entity the Supremes stated that they are only exempt from antitrust suit when the they are acting in a clearly articulated state policy to limit competition, a highly unlikely scenario.  The hospitals had won in the 11th Circuit and combined.  They may now have to un-combine.        Top


AAPS v Texas Medical Board

The trial against the Texas Medical Board and several of its members including the past and present head of the Board is over.  The judge will rule later.  The AAPS states the the Board has been targeting physicians unfairly to crimp competition of the contraversial Dr. Roberta Kalaful, the past chair of the Board.  She is no longer on the Board but still has compatriots on the Board.  At the same time there is a bill being put forward in the legislature that states the Board would be required to name the person who filed the complaint against them, name the expert witnesses that wrote opinions against them and require those that hear the cases disclose any financial interest in the case.  The AAPS is also asking that the Board not retaliate against anyone who complains about them as they are accused of doing in the recent past.

Baker v Texas Medical Board
Texas App Ct

Baker, an Orthopod, was accused of poor quality of care.  The physician and the Board entered into an agreement that Baker will not be present or do any spinal procedure.  Four days later he did a kyphoplasty.  He had his license revoked since that is an orthopedic procedure.  Arrogance knows no bounds.        Top


Dr. Medical Ctr. Modesto v Kaiser

A patient went to the Modesto hospital ED after an auto accident.  The patient was hospitalized and Kaiser refused to pay for their insured.  They investigated for a auto insurance that might be primary and found none but still did not pay.  Modesto sued for their money and lost since they did not go through the Medicare administrative process prior to suing.  The patient had Medicare Advantage and although the Medicare portions was closed after they paid Kaiser the claim is still wound into Medicare.        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.