May 1, 2008 Recent Legal News





Peer Review


Chang v UC Davis

 Dr. Dongwoo Chang, a UC Davis neurosurgeon, is being terminated for "quality concerns".  He is suing to stop the termination until the hearings are complete.  He accuses UC Davis of attempting to stop his whistleblowing on the chief of neurosurgery, Dr. Jan Muizelaar.  He has accused Dr. Muizelaar of being sued multiple times (one arbitration decision against him for $250,000, in California accusations are not posted on line, only adverse decisions), having the highest mortality rate and  practicing below he standard of care along with the worst of all charges practicing medicine without a license.  Dr. Muizelaar is said to have only a limited California license which only allows him to practice at the University.  He also is practicing at the Sacramento Mercy hospitals.  The University, Dr. Chang contends, knows about the illegal activity and looks the other way due to the money received from his work.  I understand and have seen hospital systems do this type of legal slander in the past.  When I looked Dr. Muizelaar up on line he was listed as having a Special Faculty Permit which only allows him to practice at the medical school and its formally affiliated hospitals. There is some kind of arrangement between Mercy hospitals and UCD but I am not sure it is a formally affiliated hospital, whatever that means. What I have seen in the past is there is some truth on both sides of the equation.  The Court denied the injunction as not ripe for decision as yet.       

The above was written on the 4/1/08 edition of Updates.  I have just received the following below unsigned email. 

Dear Dr. Tobias,

         "I read your legal review on Chang vs. UC Davis.  The Special Faculty Permit authorizes the permit holder to practice medicine at the university hospital and formally affiliated hospitals.  Under section 2168 of the California Business and Professions Code, an SFP holder can practice at other hospitals that are formally affiliated in an educational or instructional manner as a part of the medical school's instructional program, since the SFP is purely an academic appointment and not intended for the holder to practice medicine at large as would be allowed for holders of unrestricted medical licenses, who are generally US MD holders who have been duly examined by the United States Medical Licensing Board.  What Muizelaar is equivalent to any foreign medical graduate, who does not have a valid California medical license to practice in a given community, which would be illegal under California law and the laws of other states.

        'The other interesting fact about the SFP is that a hospital is not required to report adverse malpractice actions against such a holder because in fact, the SFP holder does NOT have a medical license, thus the general rules of reporting do not apply to the SFP holder the way they apply to a holder of a valid, unrestricted California medical license.  The following link that will provide clarification for you:

        'Additionally, the allegations of "multiple" lawsuits comes from the listings in the Sacramento Superior Court records and not the one arbitrated case that settled for $250,000."   

Haas v Wyoming Valley Ctr.

Dr. Haas, an orthopedic surgeon, had a bipolar episode in the OR and was given a medical leave.  After one and a half years he was allowed back into the OR but only under the supervision of a board certified orthopedic surgeon.  He was not able to find one willing to supervise so he got a board certified general surgeon.  The hospital suspended him and he sued.  The court ruled for the hospital since the public would be better protected under the ADA by an Orthopod than a surgeon.  It should be noted that at trial he actually won $250,000 from the hospital but the judge overturned the verdict on a JNOV.      

Wedgeworth v Christus Spohn Health
Tex Ct App

 In a case that boggles the mind, the hospital actually allows nurses to perform procedures that are medical and when told the nurses are doing the procedures discipline the nurse.  Nurse Wedgeworth worked in the GI lab at the hospital.  She had prepped a patient and when the doctor didn't show she did the colonoscopy.  She identified a polyp and another technician did the polyp removal.  When the nursing supervisor found out about this, Wedgeworth was reported to the nursing board who did nothing (it is Texas) and was placed on leave.  After the board did nothing the hospital punished the nurse by making her do paper work.  She sued for fraud and negligent misrepresentation.  She lost the summary judgment on the former but won on the latter. 

Irgau v Christiana Health
Del Super Cy

Two surgeons refused to enter into an exclusive arrangement with the hospital and were denied bariatric surgical privileges.  The privileges were given 15 months prior to the surgeons filing suit for interference with contract.  The court said the surgeons did not reference any contracts that were interfered with and the reinstatement precluded any damage claim.  This reasoning seems faulty since they could not make money due to the hospital policy and this should be a fact to be considered. 

US v Jackson

Lawanda Jackson was indicted for snooping into celebrity medical records at UCLA and selling the information to the rags.  The indictment alleges that the national enquirer (they don't deserve capitols) paid her husband $4600.  She faces 10 years in prison.      Top


Hopkins v Heartland Med Ctr

The hospital committed the cardinal sin of switching two babies and not catching the error until after discharging the mothers and babies.  The hospital just after discharge realized its error and called one of the discharged mothers.  They then compounded the problem by leaving a message on the answering machine when she wasn't home asking her to return the baby to the hospital and pick up her child.  Both mothers are represented by the same ambulance chaser and want the hospital to publicly state what happened and what steps they are taking to make sure the same thing doesn't happen again.  Oh yes, the chaser is also asking for over $50,000 for each mother for the several hour mistake.  

Arpin v US
7th Circ

 The patient's family sued an orthopedic resident and his mentor for malpractice after the patient died from sepsis.  The bench trial found for the plaintiff and gave an award of $8 million.  This included $7 million for loss of consortium.  The 7th Circuit reversed the $7 million as the judge gave no rationale for his decision.   Back to court for a more rationale amount. 

Kendall v Hoffmann-LaRoche
NJ State Court

In the third case against the drug company for its Acutane the plaintiff has won.  This time the plaintiff won $10.5 million for developing ulcerative colitis at the age of 14 after being on the drug for two years.  She had to have her colon removed and has chronic diarrhea. She also won $78,000 in medical damages.  The company plans to appeal all the cases.  

Dill v Fowler
Texas App Ct

The court said the Texas rule that physicians who treat patients in the ED need to be willfully and wantonly negligent is constitutional since it makes it easier to recruit ED and on call physicians.  There may not be as tough a time getting physicians to be on call if more states would follow suit.  

Ochoa v Vered
Colo Ct App

 The Colorado court stated that the Captain of the Ship doctrine holds in the state.  A sponge was left in the patient and the nurses were responsible for the count according to the hospital policy.  The court stated that the surgeon must order the recount of sponges as necessary. 

Howe v Boucree
Mich App Ct

The Michigan Court of Appeal reversed a verdict for the plaintiff due to the antics of the plaintiff attorney, Konheim.  The court stated that the attorney's conduct was so egregious that it effected the jury.  He also made irrelevant and disparaging remarks to witnesses.  

Harris v Mt Sinai Med Ctr
Ohio Supreme Ct

 The Ohio Supreme Court also reversed a trial because of the plaintiff attorney.  He also went beyond the bounds of fairness in the courtroom and lost his client a $30 million verdict. Hope he has good malpractice insurance.   

Weatherspoon v San Francisco

The San Francisco Board of Supervisors agreed to a $5 million settlement with the plaintiff for San Francisco General's not monitoring the patient on sedatives causing a nine minute heart stoppage.  He now requires 24/7 care for anoxic brain damage. He also got $250,000 from UCSF who staff the hospital.  The attorney will get $722,500 from the settlement after it is approved by the mayor.        Top


US v Castillo

The USDC in Southern Florida sentenced Miami Michael Labrada and Miguel Castilla to prison for Medicare fraud.  Mister Labrada was sentenced to 97 months and Mister Castilla for 57 months.  They were convicted of Medicare fraud in DME.

US v Trikha

Dr. Ajit Trikha of Missouri was convicted of Medicare fraud for billing for services not provided.  He was sentenced to two years probation and to pay over $1.7 million in restitution.

US v Steinberg

Dr. Fred Steinberg of Boca Raton, Florida, and his company University MRI were accused by a whistleblower of charging for non existent CT scans.  The charges also included overcharging and paying physicians to send them their business.  They did this by giving them discounts and making them medical directors for no work.  They agreed to pay $7 million in restitution while denying any wrongdoing.  They state the settlement allows them to continue to bill Medicare.  The whistleblower got $1.7 million.        

US v Hunt
6th Circ

Dr. Hunt was convicted of healthcare fraud.  The federal guidelines state he should get 33 month jail.  The physician got no jail time and this was appealed by the government.  The 6th Circuit said back to court for re-sentencing.   

US v The Oaks Diagnostics

The Oaks Diagnostics DBA Advanced Radiology of Beverly Hills has been accused of doing unnecessary tests and billing Medicare for them.  This is a qui tam case that is joined by the government.  The suit claims that Medicare people were solicited to have the exams they did not need.  

US v Memorial Hosp.
SD Georgia

Memorial Health University Medical Center, Georgia Eye Institute and Provident Eye Physicians entered into a settlement with the government over the employed physicians being paid over market price which was a Stark violation.  They will pay $5.08 million and Memorial will enter a CIA.  This was a whistleblower suit by a former physician who will get 17% of the award.           Top


LA v Anthem Blue Cross

After California refused to order the insurance companies that illegally rescinded the policies of its clients, the LA city attorney decided to sue to have the company rescind their rescission.  The company stated that it defends its position and fight the suit in court.  It won't.  After the suit was filed, California reversed its position and now will order the companies to send at their expense all the cases they rescinded to independent outside consultants to determine the validity of the rescissions and to have them recover and pay all medical expenses of those the third part states is proper.  This will cost millions to the insurers.  The settlements will be hush hush.  

Palmetto Pathology v Blue Cross
Fla Ct. App.

Palmetto Pathology and the other Florida pathologists have not been paid for overseeing lab tests done under their supervision since 1999.  That's when Florida Blue Cross Blue Shield made a unilateral decision to stop payments to pathologists for this service.  Palmetto had tried to work out a settlement with the insurer but failed and filed suit.  They won in the trial court and again in the court of appeal.  They got every penny asked for plus interest.  Blue Cross is planning to appeal to the Florida Supreme Court since there are 11 more cases in line against them.  Think of the interest alone in the Palmetto case on $1.5 million over the years.    

Physicians v Blue Cross

There is finally a court approved settlement between the insurers and the physicians in the Miami class action suit.  The insurers will pay $130 million to the 90,000 affected physicians that they shorted over many years and an additional $50 million in attorney fees.  The insurers have also agreed to stop their predatory business and paying practices.         Top

Peer Review

Brown v Sun Healthcare
ED Tenn

A patient's family sued a nursing home and wanted all documents.  The court stated that the plaintiff was allowed all documents that were not covered under the state's peer review statute and all incident reports that were not given to the state.  All documents prepared in the normal course of business are fair game.        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.