May 15, 2005 Recent Legal News









Peer Review


Heartland Surgical v HCA

The Specialty hospital is suing HCA for antitrust.  The 18 page complaint alleges HCA used its anticompetitive powers of owning 12 hospitals in the Overland Park, Kansas area to freeze out the specialty hospital from getting insurance contracts.  There is a precedent for this in Oregon.   

US v Proctor Hospital & St. Joseph

Proctor Hospital in Illinois was fined $15,000 for an EMTALA violation.  They failed to provide a medical screening exam for an infant.  St. Joseph Hospital in California was fined $30,000 for failing to stabilize a teen with methadone overdose that arrived by ambulance.  The patient died.  

Adams v Trover Clinic 

In a fascinating case Trover Clinic in western Kentucky was sued by a bunch of patients because CMS told Trover to reread multiple x-rays at the hospital.  The hospital hired a radiologist to review the readings.  No deviation from the standard was found.  The patients then sued the hospital system of 12 clinics for negligence.  The Trover foundation then decided to stop treating those patients that were in the suit.  The patients requested a TRO to stop Trover from not treating them in non emergency situations.  The federal judge refused to issue the TRO.  They stated there was no threat of impending injury.  The patient's expert in the matter was rebuked by both the judge and the hospital's attorney.  The physicians are allowed to override the clinic decision and treat the patient if the physician feels strongly enough.   

Workers v Los Robles Hospital

 Four respiratory therapy workers sued as a class action law suit against their hospital for illegally not paying them and other hourly employees for their lunch breaks and rest periods.  This cost the hospital $4.75 million.  The hospital made the workers forgo breaks and this means they needed to pay one hour for every break missed.  California regs require two paid 10 minute rest breaks and unpaid 30 minute meal break per eight hour shift.  

Lemonick v Allegheny Hosp. Sys.

Dr. Lemonick, an ED physician who worked at and was fired from Western Pennsylvania Hospital, has filed a whistleblower suit.  The physician alleges a dirty hospital with bathrooms smeared in feces, delays in testing and cardiac patients not receiving prompt treatment.  He was fired for being disruptive for reprimanding nurses and resident physicians for lapses in care.  The physician is also seeking lost wages, benefits and other unspecified damages.    Top


Michigan v Rydesky
Guilty Plea

Dr. Rydesky pled guilty in the death of his brother.  The Doctor had chained his brother to a bed to allow him to sober up enough to take to rehab.  The brother died by strangulation in the chains used to tie him up.  The doctor faces 15 years in prison.  

Illinois v Mikos

Ronald Mikos, DPM is on trial for murder.  He is accused of killing a potential witness against him in a fraud trial.  The prosecution states he shot his former patient six times.  He originally was accused of billing for procedures not performed.  These totaled about $1.25 million.   

US v Fleisher, Klass, Shapiro

The US has charged the three physicians of supplying Viagra to the NY Mafia in return for favors.  Apparently the Viagra were samples that the physicians gave to the people.  One of the physicians had been treating one of the people for  heart problem for many years. I am not quite sure what the charges are unless the favors were payment for sample drugs under a barter system.  This would be a stretch. 

US v Heldeman
1st Circ

The 72 year old physician had used his home to write prescriptions for Oxycodone in exchange for sex. The circuit stated that the government's seizure of the house was legitimate and did not violate the 8th Amendment.  The physician's card used his home address as did the prescription pads.  The doctor had about $900,000 in equity in his apartment condo and the potential fine was over $6 million.     Top


Johnson v Bradley
New Jersey Ct. Appeal

In a scary decision for physicians in this state, the court has ruled that if an insurer goes bankrupt the physician is personally responsible for all the money above the state's $300,000 limit.  This could make many physicians want to leave the state quickly or do some asset allocation to protect their family.  Several med mal companies have gone bankrupt recently.  The case is being appealed to the state Supreme Court.  

Akers v U. Chicago

In an interesting interview on CNN, Mrs. Akers, who has neck cancer, also was told by the University that she had breast cancer.  Her neck cancer therapy was delayed while she had a mastectomy.  As it turned out her slides were mislabeled and she had no breast cancer.  She is suing the University and in the interview her attorney was asked how much they are suing for.  He never answered the question but instead went on a side bar binge about the current fight in the legislature about caps.  It was most inappropriate and evasive, but typical.  He was even rebuffed somewhat by the interviewer.    

Fox v Ethicon
Ca Supreme Ct.

Fox was injured when she developed a postoperative leak following an endoscopic procedure.  She sued the physicians and the hospitals.  During deposition she found out that the problem may have been a faulty endoscopic stapler and attempted to add Ethicon, the maker of the stapler to the suit for product liability.  This was beyond the statute of limitations.  This changes the current law where plaintiffs must file against all defendants within the statute.  The high court ruled that the old law was not fair and would lead to meritless suits.

McLaughlin v MGH
Mass. Superior Ct.

 In one of the highest amounts ever awarded in the People's Republic of Massachusetts a jury has given a child born with CP $24 million.  Her head was tipped coming through the canal and was pulled out via a suction extractor and then fundal pushing  without telling the parents about the potential for brain damage or the alternative of a C-Section. A CT Scan showed  peri-brain hemorrhage. The physicians had the mother on an increasing Pitocin drip without close monitoring, according to the mother. The doctors sued were employees of MGH.  MGH will appeal on the basis that the jury came back after deliberating about four hours, too soon according to the attorneys for the hospital.  The decision was for $12.9 million in damages and an additional $10.9 million in interest that has accrued since the filing in 1998.  The child is now nine years old and in second grade.  She requires an aide with her and is pulled out of class about half of the time for special instructions or therapy.  He has seizures and can walk with braces for short distances. 

Owen & Galloway v Smart Corp.
Mississippi Supreme Ct.

 Owen & Galloway, a law firm in Mississippi, sued Smart Co. a medical records company and several hospitals for antitrust.  They contended that the defendants charged them inconsistent fees for their client's medical records.  In a blow for all that is good and proper, the attorneys sucked wind.  The Courts all stated they had no standing to obtain the records except as agents for their clients.  Therefore, the clients were the only ones who could sue.  The Supreme Court went on to state other grounds for denying the attorneys and granting the defendants summary judgment.  A stupid case by stupid attorneys done for ego and to waste money.           Top


Physicians v Health Net Prudential

The judge has approved a settlement between the physicians of the country and Health Net and Prudential Insurance companies.  The suit alleged the insurers bilked the physicians out of millions by chronically short changing what they paid.  Health Net will pay the physicians $40 million and the attorneys another $20 million.  It will also invest an additional $87 million to improve their systems to attempt to get it right.  Prudential got off easy by agreeing to pay $22 million for both the physicians and the attorneys.  Previously Aetna and Cigna had settled for $470 million and $540 million respectively.  This still leave UnitedHealth, PacifiCare, Coventry, Humana Anthem and Wellpoint in the suit.  The trial against them is expected to begin in September in Miami Federal Court.  The two insurers said they did no wrong but paid the millions anyway.      

Groner v Connecticut

Groner, a surgeon in Ohio who is opposed to the death penalty, has filed a suit in Connecticut to stop a proposed execution of a mass murderer.  His basis is that the physician in charge can not legally train the people who actually administer the lethal injection.  He bases this on the AMA Ethics Guidelines.  Dr. Groner is wrong on two counts.  The first is that he has no standing in Connecticut and the second is that guidelines have no force of law.  The prisoner was executed by injection on Friday, the 13th, an unlucky day for Dr. Groner but not for the prisoner who wanted to die.        Top  


US v New Millennium Orthopedics

The above IPA will disband and are barred from collective bargaining in the future.  The government allowed the possibility of further integration and risk sharing in the future.  The IPA said the FTC was full of it but settled anyway.

Welchlin V Tenet

DO. Welchlin and another DO were denied application to a Tenet hospital since they did not have ABMS Boards.  They sued Tenet.  Tenet filed for Summary Judgment which was denied.  Tenet stated that relative geographic market was not given by the Osteopaths.  The court ruled that the geographic market was in dispute between the parties and Summary judgment is not appropriate on those grounds.  Tenet turned to the lack of proof of restraint of trade.  The court agreed with the Osteopaths that there was good circumstantial evidence of restraint of trade.  Then Tenet argued that there was no antitrust injury.  The Osteopaths showed their charges were less than the hospital's orthopedic surgeons.  Tenet lost on all counts.        Top


Doe v DCF
Trial over

Florida is back in the news.  After the Terry Schiavo fiasco, the state attempted to prevent a pregnant ward of the state from having an abortion.  The judge ruled that the 13 year old may have the abortion and would not be harmed physically or emotionally by the procedure.  Florida will not appeal the decision.  The DCF said they could not consent by state law to the procedure and the girl was incompetent to consent.  Florida law allows minor children the right to an abortion.  She had the abortion.

Douglas County v Anaya
Neb. Supreme Ct.

In another patient's rights case, the Nebraska Supreme Court stated that religious objections are not enough to overshadow the screening of newborns for genetic diseases.  The mother believed that if blood was taken via a heel stick that life is taken.  The court stated that the law is religiously neutral and therefore can be rationally related to a state law.       Top


Eist v Maryland
MD Circ Ct

Dr. Eist, a Psychiatrist, was asked by the State Medical Board in 2001 for client information.  He initially refused due to patient confidentiality and the patient's wishes that the information not be sent.  He was reprimanded by the Board but won in the ALJ hearing.  The Board did not follow the recommendation of the ALJ to dismiss the charges but instead fined the doctor $5000 and issued a reprimand.  The circuit court reversed the board again.  After a second review by another ALJ that again went in favor of the doctor, the miscreants at the Board now are again looking at the case.  They should give up the ghost and admit their mistakes.  An apology would be nice but would never happen.   

Tendai v Missouri Medical Bd.
Missouri Supreme Ct.

Dr. Tendai, an OB, during the final month of a patient's pregnancy was concerned of lack of growth of the fetus.  He considered sending the patient to a perinatologist and stated he did after a time.  Dr. Tendai had a habit of using sticky notes on his office charts to remind him of certain things but these were not part of the medical record.  One of the notes stated he had set the patient to a perinatologist.  The patient delivered a still born and filed a complaint to the medical board.  A full hearing was held with medical and lay experts on both sides.  The board concluded that he had not sent the patient to a perinatologist, had not properly monitored the pregnancy and this was below the standard of care and constituted gross negligence, repeated negligence and incompetence.  The Board then held a second hearing and took away Dr. Tenai's OB privileges, and suspended his license for sixty days.  Tenai appealed to the circuit court and lost.  He then appealed to the Supreme Court and they stated that the sticky notes could not be used as evidence since thy were not part of the chart and lacked credibility.  They also stated that the lay witnesses could not determine a gross deviation from the standard of care.  None of the Boards medical experts stated that he grossly violated and only one stated he violated the standard.  In fact, the initial reviewer stated that he was within the standard of care.  Therefore there was no evidence of gross negligence.  There was also no evidence of repeated acts since all came from one act and bootstrapping was not allowed.  The Court also tossed the incompetency charge since even competent physicians can do a negligent act and doing the negligent act does not make one incompetent.      Top


Pierce Apothecary v Harvard Pilgrim
D. Mass.

Harvard Pilgrim, a HMO, illegally conspired with a subsidiary of CVS to get around the Massachusetts Any Willing Provider law.  They got caught and sued by Pierce.  The law stated that any pharmacy could participate as long as they charged no more than allowed by the HMO.  The illegal agreement allowed Harvard Pilgrim to pay a large fee to the CVS PBM which could then pay low fees to all pharmacies.  CVS would still make out OK since they were getting the large PBM fee as well as the low pharmacy fee.  The court said too bad to the agreement and stated that the pharmacies would be awarded treble damages.  The court also gave a cooling off period to allow any negotiations to take place.

Med. Society of NJ v Amerihealth HMO
NJ Super. Ct.

The court stated that the medical society lacked standing to sue for wrongfully denied claims, delayed and reduced benefits to their members.  Only the physicians could bring the claims.  The court was sorry they could not hear the complaint since if true it "describes pernicious conduct which could undermine the success of managed care in this state."        Top

Peer Review

Huntsman v Aultman Hosp.
Ohio Ct. App

Huntsman, as executor or the estate, sued the hospital and physicians for med mal.  Huntsman requested and the lower court permitted a list of the documents presented to the peer review committee about the case.  The Appeals Court overturned the lower court and said that nothing regarding the peer review including the documents presented could be made public.

Fox v Parma Hosp.
Ohio Ct. App.

Dr. Fox was on the active staff of the hospital.  He was required under the bylaws to notify Parma if his privileges at another hospital were subject to a corrective action.  His privileges were suspended and another hospital but Dr. Fox did not tell Parma.  Parma found out and did a review of Dr. Fox's cases for several years.  They found no quality issues but found medical record issues of timeliness and length of stay issues.  Dr. Fox later had his privileges also suspended at another hospital and then his Parma cases were sent for outside review.  Problems were identified and he was suspended.  He appealed and lost at a hearing where he was represented by counsel.  Fox filed suit for the usual litany and the hospital moved for summary judgment under HCQIA which was granted.  Dr. Fox appealed stating facts were falsified by the hospital showing bad faith.  The appeals court found no evidence of falsification and dismissed the appeal.        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.