May 1, 2011 Recent Legal News


Peer Review






Ray v Allergan

A federal court awarded a man allegedly injured by Botox $12 million in compensatory damages and $200 Million in punitive damages.  Under Virginia law the punis will be capped at $350,000.  The case will be appealed by both sides.  The main argument for the plaintiff is that the company warned the physicians in Europe prior to warning the physicians in the US of potential dangers.

Walter v Shin

Tamara Walter died three days post lap band surgery for weight loss in a Southern California clinic.  The Clinic advertises heavily in the area under 1-800-GET THIN.  The autopsy implicated the anesthesiologist Dr. Daniel Shin for sub-optimal care.  Dr. Shin had been previously been admonished by the California Medical Board for going after a process server with a meat cleaver.  Dr. Shin is now on a leave of absence from the clinic and is not expected to ask for re-instatement.  Three other patients have died in the past several years at the center which has changed names several times, never a good sign.  All families of the patients who have died have filed lawsuits against the physicians, clinic and the marketing agency.        Top  

Peer Review

Physicians v Hospitals
Becker Hospital Review

Beckers have named eight recent law suits for retaliation against hospitals.  This may be a trend that may be used in a court to show hospital malice.  The eight reported cases and a brief issue summary are as follows:

Wallace v Univ. of New Mexico

Dr. Anne Wallace, a breast cancer surgeon, was fired after reporting substandard care in the hospital.  She complained that records were falsified or tampered with.  She also contends that a supervisor withdrew care from a patient without consent.

Stuart v Upstate Medical University

Dr. William Stuart, neurosurgeon, was fired after whistle blowing on substandard care at the hospital.

Wilcox v Hi-Desert Hospital

Dr. Dennis Wilson sued after he was peer reviewed out of the hospital after he reported substandard care.  Dr. Wilson was also on the hospital Board of Directors.

Nurse v Christus Santa Rosa Health Sys.

A nurse was fired after reporting an abortion in the Catholic hospital to the Archdiocese.

Overdyke v LSU Medical Center

Dr. William Overdyke, ortho, and Susan Hodnett, RN were fired after reporting substandard care at the hospital.  The hospital settled the case with both and the feds for Medicare fraud.

Staub v Proctor Hospital

The US Supreme Court ruled for the lab tech at the Peoria, Illinois hospital who was fired after going on Reserve duty.

Physicians v Santa Clara Valley Med Ctr

The Chief of Cardiology and another cardiologist and medical administrative assistant filed a suit alleging workplace discrimination.  They blew the whistle to the Joint commission for substandard care.

Gentilello v Texas Southwestern Med Ctr

Dr. Larry Gentilello was demoted after whistle blowing for fraud and no supervision of residents.

Does anyone see a connection between the type of hospitals and the methods used to stymie care concerns?   

Taylor v Portland Adventist Med Ctr
Or Ct. App.

The hospital was sued for medical malpractice and two physicians who were involved with the case wanted to intervene in the case.  The hospital had not filed any case against the physicians.  The physicians wanted to intervene since if the hospital lost they would have to report to the NPDB.  The court said the physicians had no right to intervene and the hospital was highly motivated to fight the suit.  I am not sure that the hospital would need to report the physicians if they lost the suit since the physicians were never named by the plaintiff.

Washington v CentraState Healthcare

Dr. Washington, an employed physician, complained to the hospital about racial harassment.  After the complaint he states he was retaliated against and sued.  He had a clause in his contract stating that he was mandated to participate in mediation and arbitration and not sue.  The court ruled that since the hospital attorney screwed up by not having a manifest unambiguous intent to arbitrate all the physician's claims and the contract did not mention statutory claims the physician has a right to sue.  

Summers v Lovelace
New Mexico Supreme Court

Dr. Summers was accused of making sexual explicit remarks to two patients.  He went through the committees and was removed from the staff.  He sued since the staff never contacted one of two patients or the social worker who took a telephone report.  The two lower courts agreed with the physician but the high court did not.  They stated that the presumption of reasonableness can only be rebutted by the preponderance of the evidence.  They thought that the lower courts only focused on this one case and not the totality of the situation.          Top



CVS has agreed to pay the government $17.5 million for overcharging Medicaid programs in ten states.  The allegations say the they collected more than they should have to fill the prescriptions of people who have no other insurance.  They should only bill for the co-pay.  This was a whistle blowing case from a CVS pharmacist who will collect $2.6 million. 

US v Christus St. Vincent Med Ctr.

The feds are accusing the hospital, a public hospital, of having to pay back $9.3 million in federal funding.  CMS did not like the way this and other hospitals around the state came up with money used to get federal matching funds.  The hospital and the county had used a potentially illegal methodology to obtain the matching fed funds.   

US v Norton Healthcare 

Norton Healthcare of Kentucky has agreed to pay $782,000 for overbilling Medicare for billing for services never performed.  The settlement is for twice the billed amount.  

US v Dartmouth-Hitchcock

 The hospital settled the suit against it for $2.2 million.  The whistle blower suit alleged by a physician that the hospital billed for services of residents not adequately supervised.  The doctor will get over $300,000 for his suit. 

US v Weinberger
D Ill

 Dr. Mark Weinberger, a Chicago area (Indiana) ENT surgeon, with multiple charges of fraud and 300 medical malpractice suits against him disappeared five years ago.  He was recently found in the Italian Alps and extradited back to stand trial. He had worked out a plea deal with the federal prosecutors on the fraud charges of four years in prison.  The judge rejected the deal and he is to stand trial unless another plea deal is obtained on the fraud charges.  The med mal cases are not to be considered in the criminal fraud trial.        Top


Steiner v Bonanni
Mich Ct. App

A podiatrist sued a former employee for taking the names of the patients when he left the practice.  To prove his case the suing podiatrist wanted the patient list of the leaving podiatrist.  The court said that state HIPAA rules were more stringent than the federal rules and therefore had precedent.  The state law did not allow the patient lists to be released without the consent of the patients.

Bonney v Stephens
Maine Supreme Court

A couple were attacked in their home sustaining significant injuries.  They drove themselves to the hospital and told the nurses that they had been assaulted in their home.  A guard overheard the conversation and in spite of being told not to call by both patients called the police.  The police interviewed the couple and got a warrant to search the home where they found marijuana.  the couple were arrested for trafficking and sued the guard and the hospital for monetary damages under the federal HIPAA rules and under state emotional distress.  The federal claim was dismissed since there is no private right to sue for damages under HIPAA but the suit on the state grounds could go forward.  Maybe crime does pay.  We will see.        Top


Delaware v Blue Cross

Blue Cross has hired a third party administrator ro get preauthorization for cardiac imaging tests.  The administrator, MedSolutions, has been judicious in allowing testing and in fact refused to authorize a test on a patient that needed one.  The patient's physician raised a complaint and the state responded.  The contract required MedSolutions to refund to Blue Cross 10% of its payments if they did not save Blue Cross at least 20% and had to return all the money if the savings were less than 10%, a major conflict of interests.  After getting their hand caught in the cookie jar, Blue Cross took out the offending clause in June, 2010.  Delaware wants the contract to be revised so the administrator must use the criteria set up by an professional society.  Blue Cross does not want to be told how to run its business. Senator Rockefeller and his Senate committee agrees with Delaware that professionals should be in charge, not insurance companies.        Top


Virginia v US
US Supreme Ct.

The US Supreme Court has turned town Virginia's request that it put the suit against Obamacare on a fast track.  This means it will go through the Court of Appeals like all other cases.        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.