March 15, 2011 Recent Legal News



Peer Review






Schindler v Goddard
8th Circuit

Dr. Schindler was an independent contractor with an ED group who had an exclusive contract with Drew Hospital in Arkansas.  Dr. Schindler was removed from the panel and sued.  He lost as his contact had a without cause termination clause and the exclusive contract had a clause that the hospital could demand the removal of any physician on the panel.  There are no hearing in these cases as they are only employment issues and can not be reported to the NPDB.  Usually there is also a "clean sweep" provision which automatically deletes any clinical privileges of the physician and removes him/her from the staff.  Again there is no hearing for this.  

Staub v Proctor Hospital
US Supreme Ct.

Staub was a radiology tech at Proctor Hospital and a member of the US Army Reserves.  This required him to be gone for the required army training.  His supervisor and his supervisor's supervisor both did not like Staub being gone and held an animus for the Reserve program.  They pushed the HR person to fire Staub and that was accomplished.  After an internal attempt at reinstatement had failed he sued the hospital.  In the trial court he won almost $60,000.  The 7th Circuit overturned the trial court verdict and the US Supreme Court reinstated the trial court verdict.      

Lambert v Baptist Memorial Hosp.
Miss. App Ct

 Dr. Lambert was an employed physician at the hospital.  Based on complaints about the physician, the hospital investigated and found his practice to be wanting.  They required him to enroll into the Mississippi Professional Health Program and suspended him until that occurred. After suspension his employment was dropped as per his contract.  He was told he had due process remedies but instead of going through that he immediately sued.  Guess what?  He lost.  The hospital won the summary judgment without even raising HCQIA.  They won it on the facts.      Top


Patients v VA

A Dentist working at the VA in Dayton, Ohio, did not change gloves between patients nor wash his hands.  He also did not properly sterilize his instruments.  About 535 patients were affected and to date 375 have been tested.  Of the 375, seven had Hepatitis C and another two had Hepatitis B.  There have been no cases of HIV as yet.    

Doe v Tulane Medical Center

John Doe has filed a suit against the medical center for improperly sterilizing their GI scopes.  Tulane has notified 360 people that they may be at risk for disease due to the mistake. One wonders if John Doe really exists or if it is just another unscrupulous attorney looking for some walking around money. 

Patients v Westmoreland Hospital
To Be Filed

There must be something in the water in Pennsylvania.  A report showing that about 200 people received unnecessary stents at the Pennsylvania hospital by two cardiologists, Dr. Ehab Morcos and Dr. George Bousamra.  The two voluntarily resigned their privileges at the hospital while under investigation.  The hospital is embarrassed and states it wants to make things right with the patients.  It will return all monies made on the procedures.  The hospital was alerted by employees who complained about too many stents being placed.  the hospital hired an outside firm to look at all the cardiologists doing stents and when the two were found to be the culprits hired another outside firm to look at their work.  

Bonham v Weintraub
4th Circ

Bonham sued Dr. Weintraub for fraud instead of medical malpractice.  The statute of limitations had run on the latter matter but not on the fraud charge.  According to the court the statute started when the patient knew or should have known of the fraud.  She had surgery by Dr. Weintraub in 2005 and when going to other physicians in 2007 she found the fraud.  She had relied on Dr. Weintraub and that reliance caused additional surgery. There is a different and more challenging burden of proof with fraud.    

Oswald v MGH

Oswald died after being given the wrong med while a patient at Massachusetts General Hospital.  She was supposed to get an antibiotic and instead go a blood thinner that caused internal bleeding and death.  There is no dispute that an error happened it is only how much it will cost and who will be blamed as the family is suing five physicians, two nurses and the hospital.  

Lambert v Economou

Lambert was injured in an car crash and suffered a severed foot.  Economou, an EMT and firefighter, took the foot to train her dog on cadaver sniffing.  She was found guilty in criminal court on petty theft and sentenced to six months probation and is now being sued in civil court.   I wonder what the emotional damages will be.  She made a unilateral decision that the foot could not be reattached before taking the foot.     Top

Peer Review

Guier v Teton
Wyoming Supreme Court

Guier, an Orthopedic surgeon, had personality problems.  He was so disruptive that the entire OR staff signed a letter to the hospital stating they would not work with him.  Obviously, he was taken off staff and did not win at any peer review level.  The Supreme Court ruled the preponderance of the evidence standard was the correct standard and clear and convincing was only for removal of a medical license. 

Wong v HHS
D Nev

I am sorry but I have to do this.  Two Wongs do not make a right.  Dr. Wong, an anesthesiologist, was removed from the hospital staff after a hearing and an appeal.  He sued for the usual things plus he added the HHS because of defamation and the NPDB.  He sued in state court and HHS had it removed to federal court.  The court wasted little time on the case and said he can not sue HHS because there is no state action.      Top



A Federal Appeals Court has ruled that the Red Flag Rule does not apply to physicians who bill patients after a service is performed.

States v US
Florida District Ct.

Judge Vinson who originally ruled that Obamacare was illegal has stated that the illegal law may be placed into being while his ruling is under appeal.  

The Government, to no one's surprise, has stated it will challenge the Florida ruling in the appeals court. They have asked for an expedited appeal to the 11th Circuit.  This is done because Judge Vinson declared the entire law unconstitutional due to the lack of a severability clause.  The Court has agreed to the expedited time frame.     Top


US v United Rgl Hosp of Wichita Falls

The Wichita Falls, Texas, hospital has agreed to stop entering into contracts with insurers that is anti-competitive to completing hospitals.  Since it is a "must have" hospital in the area it used its clout to make sure competing hospitals did not get contracts with the insurers.  The settlement lasts for seven years and prohibits giving insurers lower rates if they do not enter into competing contracts or from retaliating against hospitals that do enter into contracts.   

US v Love

Mr. Love, a pharmacist in Brazil, Indiana, has been indicted on money laundering charges and fraud. He owns the Terre Haute Prescription Shop and was accused of billing for prescriptions never received by patients.   

US v Ibrahim

Jimmal Joy Ibrahim, of Los Angeles has pled guilty of falsely representing that she owned a DME company when her brother actually owned it.  This was after Medicare had refused to license her brother.    

US v Group Health Cooperative
WD Washington

Dr. Eva Zemplenyl, an ophthalmologist at the organization and Permanente, sued for fraud and for retaliation.  She stated the fraud was doing unnecessary cataract operations for money.  She did not plead the fraud with enough particularity.  Her retaliation claim however survived the summary judgment.  It is difficult to prove that unnecessary cataracts were being done as the payments were capitated and the same whether surgery was done or not.          Top


Patients v Rancho Los Amigos
To Be Filed

Another laptop was left in a car by an employee of an organization and the laptop was stolen.  The computer had records of 667 patients.  When will they learn?        Top


LK v Missoula
Montana Supreme Court

LK is a mentally disabled adult woman with an uterine cancer.  The lower court stated that she should have a hysterectormy as the medical evidence was she would die in less than three years without the surgery.  Several psychiatrists testified that her religious beliefs, her belief that God had cured her and desire for a child were psychiatric problems.  The following day an emergency appeal to the Montana Supreme Court stopped all until they could hear the evidence within 30 days.  The ethical problems are self evident.  What can an adult be forced to do against her will and what effect does the mental incompetence hold?        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.