May 1, 2006 Recent Legal News





Live or Die


Peer Review



Hipona v Kaiser

In a case for negligent surgery, the plaintiff claimed that the laceration of an artery and of the common bile duct during laproscopic cholycystectomy was below the standard of care.  Both sides had very credible experts but the Kaiser expert admitted that a surgeon should have seen the common bile duct and avoided clipping it.  The plaintiff also stated that the bleeding from the lacerated artery precipitated a heart attack.  The defense stated it was only a small one.  He was hospitalized for several months and has only been able to work sparingly since.  The arbitor did not believe the work element and awarded only $250,000 for pain and suffering as this is the cap in California.  Kaiser has a habit of not reporting their physicians to the Data Bank after these lost malpractice cases.  I hope they are now doing it.   

Chilton v Methodist Hospital

Methodist Hospital and three physicians are being sued by the father of a 10 month old child who was seen in the ED and then allowed to go home with an abuser.  The boy died a month later from abuse.  The child had a skull fracture when first seen and was admitted to the hospital.  The incident was not reported even though the grandparents and the biological father asked the physicians to check for abuse.  The abuser was tried, sentenced and jailed.  He is now out and the mother was never charged. 

Wiggins v St. Vincent 
Conn. Superior Ct.

The plaintiff sued the hospital for a reaction to the contrast used in a CT scan and the husband sued for loss of consortium.  The hospital said the radiologist was an independent contractor and not an employee.  The court dismissed the hospital's summary judgment motion since there was an issue of fact to be determined.  They also stated that the patient had a prior dealing with the radiologist and therefore proof that the radiologist was an employee would be difficult. 

Musick v Dutta
Ohio Ct. App.

 The plaintiff came to the ED with a post-op infection.  Her physician was not available so she was given the choice of two on call physicians.  The physician operated on her and she developed an infection.  She sued the physician, an independent contractor, and the hospital.  The hospital filed for summary judgment but lost since the patient came to the hospital and not to any particular physician for care.  This is a decision for the jury whether or not the hospital should have any liability.  To trial.  

Patients v Notami Hospital
App. Ct.  

 Three patients sued the hospital for negligent credentialing of Dr. Robert Pendrak.  The plaintiffs wanted peer review documents and the CEO on deposition refused to answer certain questions.  The following day Amendment 7 was passed by the Florida voters.  The lower court and now the Court of Appeals have stated that Amendment 7 is retroactive and the hospital must give up the records and the CEO must give the answers to the deposed questions.  

Henry v Flagstaff Med. Ctr.
Ariz. Ct. App.

The Ct. of Appeals ruled that the patient only relied on her own personal opinion as to the hospital being the apparent agent.  The hospital to be an agent must meet a three part test.  The first is the principal (hospital) via conduct must represent it to be an agent.  Number two is the other party must rely on the representation. Lastly, the reliance must be reasonable.  The was ambiguity in the consent form so that there could be a representation but the personal belief did not allow for reasonable reliance. 

Hogue v ProPath
Texas Ct. App.

 Hogue had a biopsy misread in 1998 by ProPath.  They found out about the misdiagnosis less than two years later and hired an attorney.  The attorney had one month to file suit before the two year statute of limitations ran out.  the attorney negligently did not do so.  The case was dismissed for being over the two year statute.  The Hogue's lost and I hope sue their attorney for legal malpractice.  

Forth v Allstate
Texas Supreme Ct.

 Sometimes it is difficult to understand what happens in Texas.  Maybe it's the water.  This time an attorney sued Allstate on behalf of a client that had no damages or injury.  I hope the case was on a contingency basis and the attorney lost alot of money.  The plaintiff had no standing as she had no past injury and was no longer insured by Allstate so had no standing to sue for anything in the future.  All things her attorney should have known.       Top


Lawnwood Medical Staff v Lawnwood Hospital
Fla. Circuit Ct.

In a complete physician victory the medical staff sued their Board of Directors for unilaterally rewrite the medical staff bylaws.  This was from a Florida law specifically designed to only apply to the one hospital.  The law was declared unconstitutional.        Top


O'Meara v Palomar 
Cal App.

This is the first of two cases that are coming before the California Supreme Court for resolution.  This one had the physician suing the hospital for interference of his medical decisions.  Palomar then filed a motion to strike the original suit under California Code of /civil Procedure, the SLAPP suit statute.  The court of appeal stated that the peer review proceedings are not an official proceeding and therefore not covered by the law.  The court therefore dismissed Palomar's motion to strike the underlying suit. 

Kibler v Northern Inyo County
Ca. Ct. App.

 In the second case to be heard by the Supreme court the facts are basically the same but the outcome was reverse.  Kibler had a history of disruptiveness and was summarily suspended.  The hospital and the physician worked out a compromise but later the physician sued the hospital stating that the hospital interfered with his business.  The hospital also filed a motion to strike under the same statute as above.  The court held that the law applied to the hospital peer review proceeding because it is an official proceeding .  The court then stated that the physician could not meet the required burden of proof and his underlying suit was dismissed.   With the two courts disagreeing the Supreme Court will decide who had the better reasoning.        Top  


Prospect Health Group v Northridge Emergency Med. Grp.
Ca. Ct. App.

The court ruled that a non contracting physician providing emergency services to an enrollee may balance bill the enrollee for the reasonable value of its service.  This is only proper since any other decision would make the non contracted physician a contracted physician.  The same is true in reverse.  The health plan may sue the physician if they do not believe the requested payment is reasonable.         Top 

Live or Die

Drozdowski v Wagner
No Decision Yet

Dr. Drozdowski has filed a petition to allow Wagner, an unmarried person with no children and one nephew to die.  There is no advance directive.  The patient has no chance of survival with severe heart disease and being on a respirator.  The suit asked that the court allow the discontinuation of the respirator and the tube feedings.  The patient was a paranoid person who had delusions and did not tell anyone what her wishes were.  There is a Michigan state law that states that guardians can not sign a do not resuscitate order.        Top


Ohio v Seltzer

Dr. Kim Seltzer of Fairview Park, Ohio, is a fraud.  He is not a licensed physician.  He went to medical school in Mexico but could not pass the state license.  He had no hospital privileges but did Worker Comp treatments.  He is charged with manslaughter, 150 counts of racketeering, drug offences, prescribing medicine without a license, fraud and theft.  The defense states that he only was the owner of the practice but licensed physicians did all the treatments and billing.  

Florida v Winikoff

Winikoff, a 76 year old man, went around neighborhoods in Fort Lauderdale stating he was from a local hospital and offering women free screening breast exams.  He also did a genital exam without gloves.  This does not speak well for either the "physician" or the "patients".  Winikoff is a shuttle driver for an auto dealership. 

US v Moon
DC Tenn

 Dr. Young Moon, an oncologist, was sentenced to 15 years in jail and restitution of $432,228.  She was found guilty of diluting cancer doses to make money.  Dr. Moon has to sell her house to raise the money, but she won't need it for a while.  After she gets out of prison she will be on probation and not allowed to practice.  She also is "disappointed with the conviction."  She will appeal the conviction and the sentence.  There is no bail since she is a native of Korea.  

Conn. v Women's Health USA

 In a settlement prior to filing a suit, Women's Health USA has agreed to pay to Physicians for Women's health LLC, a group of 150 OBs $198,000.  The firm that is paying the money is the managers for the other group.  The management group accepted illegal bribes from insurers to make sure they got the physician's business.  The money was used for risk management for the physicians.  The group agreed to no longer accept the bribes or rebates for the doctor's business.  The physicians had never asked for the money and there is no word what the money will be used for.

US v Rudolph
In Trial

Dr. Rudolph, an allergist, is on trial for violating federal drug laws.  He sold drugs he received at a major discount under a federal grant.  He worked with Alliquippa Hospital in soliciting patients around the country for these meds.  Dr. Rudolph had informed the feds what he was doing and had two health care attorneys review the project.  All stated it was okay.  

California v Blue Cross

California is investigating the Blue Cross Blue Pencil of sick patients.  A employee had testified that those enrollees that got sick had their applications gone over with a fine tooth comb to see if they could be gotten rid of.  The law only allows canceling coverage for deliberate omissions or misstatements. There is a current class action suit against Blue Cross for this policy regarding individual policies. 

US v Nyamekye, McNeil

Drs. Absylom Nyamekye and Apryl McNeil of New York were sentenced in an internet drug selling scheme.  Another physician, Dr. Carlos Barrera of Miami was sentenced previously on the same scheme.  They all worked for a corporation that owned an internet pharmacy. They never examined any patient before prescribing the medications.

US v Herpin

Dr. Callie Herpin was sentenced to five years in jail for running a prescription mill.  She was sentenced to an additional five years for writing phony prescriptions for unneeded wheelchairs.  The judge stated he considered her a disgrace to all physicians and forbade her to use the name "doctor" until her license is restored.  If she violates that order she will return to prison for an additional 17 years.    Top

Peer Review

Ryan v Staten Island Univ. Hosp.

In an interesting case, the plaintiff sued the hospital for deceptive advertising, medical malpractice and fraud.  New York has a law that states once a medical service provider advertises to the public they are subject to the false advertising regs.  The plaintiff claimed that the advertising induced her husband with pancreatic cancer to come and receive their treatments.  The claim was that the hospitals advertised a 95% success rate for cancer treatment.  The discovery asked for the hospitals statistics for the treatment of pancreatic cancer.  The hospital stupidly refused.  The court quickly squashed the hospital's argument as having no merit. 

Giangiulio v Ingalis Hosp.
Ill. app. Ct.

The patient sued the hospital after an alleged assault on her by another patient with a knife. The plaintiff wanted all the information on the patient including her medical history, the physicians who treated her and other private information.  The hospital defended on peer review and HIPAA grounds.  The Court stated that the treating physicians could be discovered but not the name nor the records of the patient.  The Court also allowed the discovery of the knife used.  All this is not important if one doesn't know who to sue, but it does run up the bill.        Top


Fla. Hematology v Tummala
Fla. App. Ct.

The employee left the practice and set up a competing practice despite a non compete clause.  The Group attempted to enforce the clause.  The Court found the clause unenforceable since the physician took steps to not take any patients from the prior employer and that undisclosed future patients are not a legitimate business interest.  Practice on.  

Christ Hosp. v Health Alliance of Cincinnati

Although not strictly employment it is business related.  The hospital is attempting to break away from its parent and a trial is set for November.  The hospital is now suing to allow the hospital to continue business as usual until the trial has concluded.  The alliance has allegedly stopped payment of professional fees, refused to negotiate and cut the hospital's employees from access to the web site that discusses the hospital's departure.  It's always nice to see harmony between parents and their offspring.

Pena v Bjorndal
9th Circ.

In an unpublished opinion, the 9th Circuit ruled that the summary judgment was illegal.  Dr. Van Pena sued Dr. Judith Bjorndal for placing him on administrative leave after he reported medical negligence.  The 9th Circuit overruled the District Court that allowed the summary judgment stating it was a matter of fact that needed to be decided as to protected speech was a fundamental factor in the employment action. There was only a three week hiatus between the report of negligence and the leave.  Pena was also taking pictures of patients without their consent to document the negligence.  Bjorndal stated she ordered him to stop because it was against hospital policy to take unconsented to pictures. There was also a disputed medical action.  These disputes need to be heard by a jury.    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.