March 15, 2010 Recent Legal News



Peer Review



Medical Board

Informed Consent



Nurses v Washington Hospital
To Be Filed

Washington Hospital in Washington, DC, owned by Medstar, the same outfit that owns Georgetown Hospital, has fired nurses for not reporting for duty during the massive snowstorm that hit the East Coast earlier this year.  This is the largest private hospital in the DC area.  The hospital expects about 20 people to be dismissed.  A class action grievance against the hospital has been filed by the union.  Surrounding hospitals have reported no disciplinary actions.  I know Medstar is not known to be good with billing but I did not know about their hard line personnel problems.  There is also the timing of the firings as a new contract negotiation between the hospital and the nurse's union are soon to start. In the hospital's defense they apparently followed the Joint Commission rules by offering 7300 meal vouchers and sleeping arrangements for 2200 employees.  However, approximately 230 employees did not report for duty during the emergency and there is no mention as to how the hospital singled those out for firings.  

Several days after the above report, Washington hospital stated that three nurses had been un-fired and that four new ones had been fired.  This sounds like a hospital that the nurses would not want to work for.  

Baqai v Tri-State County Hlth Ctr.
D.  Md

Dr. Baqai sued Tri-State after being terminated.  She sued for breach of contract and fraud.  Her claim stated that while she refused to see other patient's routine patients while on call she was available for any distressed patient.  She also claimed the hospital falsely represented to her their policies when she became employed.  The court allowed the case to proceed since there were genuine disputes of facts. 

Suh v CHA Hollywood Med Ctr
 Cal Ct App

Drs. Suh and Chung were with a medical group of anesthesiologists that had a contract with the hospital.  They were terminated and the trial court ordered arbitration instead of a law suit.  The court of appeal overruled and allowed a trial. The original contract was in 2006 and again in 2008.  The 2008 contract was never signed by the two physicians and they never saw the contract until months after execution.  The physicians sued under state law for racial discrimination plus all the usual complaints.  Both contracts had arbitration clauses.  The 2006 contract was signed by a LLC which is illegal in California.  The LLC later became a professional corporation but never had a shareholder agreement nor elected directors or officers.  The 2006 contract was also unconscionable since it held under the AHLA one could not sue for punitive damages under personnel issues.  

Schwartz v Oakdale Heights of Santa Clarita 
Trial Court

A jury found for Mrs. Schwartz, a 94 year old resident of the nursing home, against a dietary worker Jose Vazquez who raped her and his employer Oakdale Heights. The employer was found to have falsified employment documents and created elder abuse by using cost cutting measures.  Schwartz received $6 million in damages and an additional $6.5 million in punis.  Vazquez had a master key to all rooms in spite of having no background check and no training in dealing with elderly people.           Top


Rosenberg v Humana
Fla. Small Claims Ct.

Dr. Rosenberg is a dermatologist in Palm Beach, Florida.  He and his associates were owed about $130,000 by Humana who as is their want stalled and did not pay legitimate claims.  Instead of going to civil court and paying a contingency fee, the physician bundled some of his cases to adhere to the $5000 limit of Florida small claims court and filed.  Humana sent an attorney to defend them (this is illegal in California) and the physician won the case getting $5334 including filing fees.  He warned the attorney at that time that this was the first of 25 cases he was planning to file.  He filed and won another case several months later.  He then began receiving checks totaling $90,000.  He has now been paid in full.  This process may work in any state providing their is no arbitration clause in the contract, that the provider realizes the loser in a small claims suit may go to trial, the insurer may ask the court to bundle claims and then take it to civil court which may take a year or so to process and at legal expense. 

In-Home Supportative Services v California
9th Circ

The 9th Circuit approved a lower court ruling that stated the state can not balance the budget by reducing the amount of money paid by Medicaid to hospitals and physicians by 5%. This will be appealed to the US Supreme Court.  

Baker County Med services v Aetna
Fla Dist Ct

This is the first Florida case to test whether an insurer must pay full billed price for emergency services or only what is the usual accepted price.  The court ruled that the insurer only has to pay what is the usual price for the area and not the billed charges.  This does not only include hospitals but other entities that see emergency cases such as urgent care centers.  This lowers the price to be paid even further.  The court also stated the usual payment would consider the contracted as well as the non contracted rates, a continuation of the decrease in payments.    

Houston Town & Country Hosp. v Memorial Hermann
Trial Ct.

A jury has found that Memorial did not illegally use antitrust activities to stop insurers from dealing with Town and Country Hospital.  The latter went bankrupt since no insurer would deal with it.  The hospital had argued successfully that when the physicians invested in the hospital they were told they could lose all their money and they did.       Top

Peer Review

Patterson v Methodist Health of Memphis
Tenn Ct App

The court allowed summary judgment for the hospital in a suit filed by two physicians who broke the hospital bylaws.  The bylaws are a contract in Tennessee and they state that members must carry med mal insurance.  Thes physicians did not and were terminated. 

Jimenez v Wellstar Health Georgia
11th Circuit

Dr. Jimenez, a black neurosurgeon, was removed from the hospital for quality concerns.  He has requested a hearing but in one year this had never occurred.  He then sued under Section 1981 for discrimination.  He lost in the lower court and again in the Circuit court.  The bylaws specifically stated that they are not a contract and a contract is necessary for the claim to go forward.  If he had been an employee the claim may have gone forward.   

Pardo v UC San Diego
Cal Ct App

Dr. Pardo was not rehired and sued.  The court agreed with the lower court that the hospital complied with its bylaws even though the ad hoc committee did not personally interview him (not required in the bylaws), the utilization of email voting (no harm proved), the use of unredacted documents (not a due process violation) and the use of an alternate panel member ( bylaws gave hearing officer the authority to make procedural rulings).  I might add that B&P Code 809 does not apply to any State University.  

  Williams v University Med Ctr of Southern Nev.
D Nev

Dr. Williams, an anesthesiologist, was summarily suspended after a patient woke up during a procedure.  The patient suffered a brain injury.  The COS did the summary suspension but did not tell Williams the cause.  The MEC agreed with the suspension since Williams did not attend a recommended drug rehab program.  There was never a mention in any communication with Williams about the possibility of drug problems.  The hospital reported Williams to the NPDB which caused him to lose two other hospital positions.  Williams sued for antitrust, defamation, and the other usual complaints.  The court said that he had not proved any antitrust injury but that the COS and medical staff did not provide him with any notice of charges.  This meant HCQIA did not apply.  Also the hospital reported him for three cases when there were only two and this showed along with the refusal to change the report malice.  This was enough for defamation.  The other interesting part of the decision was the definition of a contract.  The court believed that Williams application to the staff was an offer and the placing him on the staff was an acceptance thereby creating a valid contract.        

Wilkey v Hull
6th Circuit

Wilkey, an Orthopod,  was terminated from McCullough-Hyde Memorial Hospital.  He sued the hospital's attorney for withholding external peer review which was in his favor.  The first external reviewer was anti Williams but his credentials were suspicious and the second external review was requested.  The hospital hired attorney Gregory Hull to present the hospital's case but he did not mention the second review.  Williams was terminated.  He did not learn about the second review until he had sued the hospital.  The federal court using Ohio law found eventually for the attorney.  Let us hope that this attorney is never again used for any peer review process or in my opinion never sees a courtroom.  I am sure that no peer review physician would allow him to be the attorney for any hospital under voir dire.  Top


US v Weinberger

Dr. Mark Weinberger of Indiana fled the United states to avoid prosecution for fraud.  He has been found in Italy living in a tent and returned to the country to face charges of fraud and the 300 med mal cases against him.  He has told the judge that he is broke. He will probably be assigned a public defender for his criminal trial and then go bankrupt to avoid all the civil suits.  

US v Brookhaven Hospital

Brookhaven Hospital in New York agreed to pay the government $2.92 million for inflating its charges to the feds.  This was to get outlier payments.  This was a whistleblower case. 

US v Rush Medical

Chicago's Rush Medical has agreed to pay $1.5 million for illegally leasing office space to two physicians and three physician practice groups.  The hospital had no written lease and no specifics, bad legal no nos.  This is a whistleblower suit by other physicians.  Stupid hospital and even stupider attorney.     Top


Murray v Penn

Murray had chest pains and was taken to Underwood Hospital where a dissecting thoracic and abdominal aneurysm was found.  The hospital doe not have heart surgery so they called Penn to transfer the case.  Penn originally accepted the patient and then declined the transfer.  Mr. Murray had no insurance.  The patient was transferred by ambulance to another hospital since helicopter was impossible due to the weather.  Murray ended up blind and brain damaged.  Murray is suing Underwood for delay in diagnosis and transfer, the ED physician, the surgeon at Penn and Penn.  The charges include EMTALA violations. 

Patient v Penn
To Be Filed

Penn continues in the news.  This time for doing brachytherapy for cancer of the prostate but putting the seeds outside the prostate.  This has led to a full investigation of the program by the state.  There is no mention in the article what happened to the patient. Penn blames the error on a new ultrasound machine but that does not sound feasible.   

Patients v St. Joseph
To Be Filed

St. Joseph Hospital in Baltimore has notified another 169 people that they had unnecessary cardiac stents placed.  These were done by the former chief of cardiology Dr. Mark Midei.  This bring the number up to 538 and more are to be notified.  To date this has caused a class action law suit, the firing of the CEO and two other hospital execs and a federal investigation along with the state investigation.  The hospital has also revised its peer  review process.  It has gone from only looking at potentially probable cases to cases randomly picked by computer.  This means that each physician will have at least one case reviewed per year.     Top

Medical Board

CMA v California
Superior Ct.

A San Francisco Superior Court judge agreed with the governor of California that he has the power to furlough people that work for the Medical Board  even though they don't get state funds.  He also transferred $6 million of fees paid by physicians to other state funds.  There are seven other furlough cases up for review and the state has asked that they be consolidated.        Top

Informed Consent

Bowling v CBS

Bowling saw an web site for laser removal of penile plaques (warts) by a physician, William Groff.  He made an appointment to get the procedure done for $4500.  Several days later he was contacted by the physician's secretary to see if he would allow a discussion regarding the surgery to be shown on "The Doctors".  He was apparently told that only physicians and medical students would see the procedure and he would get the procedure for free.  He agreed.  It turned out that it was shown to 200 people and rebroadcast on U Tube.  He is suing for punitive damages the physician, the people who videotaped him and CBS for his humiliation and lack of consent.   

Willis v Bender
10th Circ

Willis needed a cholycystectomy.  She asked Dr. Bender about his experience and track record with laproscopic cholycystectomy, whether he had ever been sued and if he had any problem with his medical license.  Bender stated he had never been sued and had a good track record.  His assistant then perforated Willis' intestine during the procedure.  It was found that he had lied about several things when he told Willis that he had not been sued. He was found innocent of medical malpractice for the mistake of his assistant.  The summary judgment for informed consent was overturned under Wyoming law. The question for the jury will be if the physician's lies were the causation of the injury.      Top


US v Schneider

Dr. Stephen Schneider of Haysville, Kansas along with his wife were arrested in December, 2009 and now indicted on contributing to 68 deaths. The government charges the couple of illegal prescription writing. The indictment states that medical records were incomplete, patients were given prescription refills after prior OD on the same drugs and inexperienced PAs received minimal supervision.  The indictment also states the physician left blank prescription pads and his wife forged his signature. The defense states the prosecution is reaching since it has no case.  It is accusing the couple of the deaths of several patients while the couple were in prison. The trial will be later.  

Oregon v Beagley

Mr. and Mrs. Beagley were sentenced to 16 months in prison for relying on faith healing instead of medicine when their son became ill.  He died at 10 years of age  secondary to a simply reversed urinary tract obstruction.  The crime was criminally negligent homicide.  The defendant's attorney stated that he would appeal but it is unknown on what legal grounds.  It should be known that months before the son died the Beagley's granddaughter died from pneumonia that might have been treated.  The father was sent to prison for two months for criminal mistreatment after being found innocent on manslaughter.        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.