A judge in Oakland, California has allowed local cases against Sulzer for malpractice and faulty hip implants to go forward. the rationale is because the plaintiffs are very ill and not expected to live. This goes against the federal ruling that consolidates all the Sulzer cases. Sulzer never argued in court since the case had already been decided in federal court and only gave the court a written document stating the same. I would expect the decision to be overturned on appeal.
Judge O'Malley of the federal court has ruled that all state court actions are stopped until the federal actions are finished. She is to rule on the fairness of the settlement proposal in March, 2002.
The worm turns. An U. S. Ct. of Appeals in Cincinnati has stayed O'Malley's decision. The appeals court has stated that they had serious doubt of the legitimacy of O'Malley's approval. They will study it and issue an opinion later. The individual cases are now going to be back on the state trial court dockets. Top
Plain Dealer v Parma
Although not truly a peer review case the Ohio Supreme Court ruled that the hospital does not have to turn over to the press confidential records. The hospital was ruled to receive no governmental money, therefore are not a public entity and immune from the press. This was a zoning dispute where the hospital wanted to build an assisted care facility and the local residents said "not in my back yard." The residents were denied the hospital minutes, appraisals and plans. Top
CA v Saldivar
The People indicted Efren Saldivar for murder, attempted murder and theft. The "Angel of Death" had confessed to the crimes several years ago and then recanted. The state believes Saldivar injected multiple, maybe several hundred, patients with Pavulon, a muscle relaxant causing their deaths. Saldivar was a respiratory therapist at Glendale Adventist Medical Center.
People v Perry
Dr. Keith O'Neil Perry was sentenced to five years in federal prison and ordered to pay $2.8 million in restitution. He was convicted of Medicare and Medicaid fraud. He was found to have misdiagnosed 300 patients with lymphedema to obtain medical devices. The medical suppliers would recruit the patients for Perry telling them they would receive a free medical examination. The salespeople then filled out the prescription blanks and the medical necessity forms. After they were filled out Perry would sign the false forms. Top
Majocha v Turner
Dr. Turner, an ENT, was accused of violating the ADA by not agreeing to a sign language interpreter. The physician stated to the patient that he would communicate on paper but the patient insisted on the interpreter. The physician then sent a letter refusing to see the patient. STUPID! The court denied summary judgment for the physicians and allowed the case to go forward on the ADA as well as possible punitive damages because the physician acted with reckless indifference to the patient under the Rehabilitation Act. The physician's partners where equally liable since in Pennsylvania all partners are held liable for the conduct of the other partners.
KPMG Peat Marwick accounting firm has agreed to pay a settlement of $9 million. They were accused of filing false cost claims for BAMI and Columbia Hospital. Of course KPMG denies any wrongdoing. This is another whistle blower case and the former reimbursement supervisor at Columbia will receive enough money to retire. Thanks KPMG. Top
I reported several months ago about the first case in Great Britain that requested the court to allow assisted suicide of a terminally ill woman by her husband. The court has ruled that the husband will not be exempt from prosecution if he helps her die. Top
Stockholm v State
The patient underwent a spinal cord stimulator at SUNY, a state hospital. The cause came from the failure of a physician to find and remove an anchor at the time of another surgery. This failure led to still another surgery.
Poulin v Yasner
The appellate court overruled the trial court. The trial court said that Poulin, who was suing for the physician failing to prevent, diagnose or treat his alcoholism, was not allowed to have an expert witness testify for him in the matter of proximate cause. the verdict went for Yasner. The appeals court stated that the expert should have been given the opportunity to testify as to whether the patient's acute pancreatitis could have been prevented had Poulin stopped drinking.
Zieber v Bogart
The court showed why physicians are leaving Pennsylvania and why there is a malpractice crisis in the State. The patient sued the physician for a missed diagnosis of lymphoma. The diagnosis was made one year later by another physician. The patient sued for past and present injuries as well as for the increased risk of recurrent cancer. The trial jury favored the plaintiff. The appeals court remanded for a new trial since there was no instruction by the judge for comparative negligence. The appeals court also ruled that the risk of cancer reoccurrence was proper for the jury to consider for damages. The Supreme Court upheld the appeals court and that evidence of increased risk or fear of recurrence of cancer is admissible for determining damages.
Verba v Ghaphery
Not all is bad in West Virginia. The Supreme Court has upheld a state law of $1 million for noneconomic damages. The plaintiff attempted to invalidate the law with the notion of inflation. The Court said that the mere passage of time does not invalidate the law. This is the most liberal cap in the country. California has a $250,000 cap.
Clark v West Shore Hosp.
A pathologist had a long standing contract with the hospital. The contract had there was a bilateral 120 day termination clause. After several renewals the hospital notified the pathologist it was not going to renew the contract. The pathologist was notified more than 120 days in advance. Clark requested an appeal to the Board. This was denied and Clark sued for failing to provide a forum. The Courts did not go for this and said since it was greater than 120 days the hospital had a right to terminate. The forum only happens when there is a dispute under the contract, not for the termination.
Acquista v New York Life Ins.
A pulmonary physician developed myelodysplasia and was instructed by his physicians to avoid radiation. This meant he could no longer perform his specialty and he applied for disability benefits. These were denied since he could still perform "the substantial and material duties" of his job and was not totally disabled. The law suit ensued claiming breach of contract, bad faith, unfair practices, fraud, and negligent infliction of emotional distress. The trial court dismissed all claims except that for partial disability. The Appeals Court reinstated the breach of contract, bad faith and unfair practice claim. The Court stated the insurance company had to and did not conclusively establish he is still able to perform the substantial and material duties of his regular job as they existed before he became ill. The bad faith claim was allowed since this can be used to show a claim for damages beyond the policy limit in a breach of contract issue. The unfair practice action was valid since the claim alleged the insurer makes a practice of delaying and then denying claims without reference to the viability of the claim. The other claims were tossed due to the contract language and the lack of asserting the proper elements.
Gianetti v Norwalk Hosp.
A plastic surgeon on staff of the hospital was denied reapplication. The cause of the termination is unknown. Gianetti sued for breach of contract and to enjoin his removal from the staff. A referee stated that there was a viable contract between the surgeon and the hospital and that was breached when he was not accorded his due process. The lower court then stated the bylaws are NOT a contract but there was a contractual relationship and the bylaws BECAME enforceable under the contract. The trial court then refused the injunction and awarded $1 as nominal damages. Guess what? Another appeal. The Appellate Court really went the other way and gave the plaintiff the amount that he would have earned under the breached contract if the contract was not breached. This means that the plaintiff now will need to show how much he has made at the hospital and how much he could have made if not for the breach. Since the contracts are yearly the hospital only needs to pay for one year of damages.
Grauberger v St. Francis Hosp.
The plaintiff was injured in an automobile accident and treat at St. Francis. The plaintiff's insurer paid the usual negotiated rate less the deductibles that were paid by the plaintiff. The plaintiff sued the accident tortfeaser and St. Francis filed a lien on any money collected for the difference between the negotiated rates and the full fare. The plaintiff settled for $100,000 in her suit against the tortfeaser. She then filed against St. Francis for double dipping. The Court stated the Hospital Liability Act did not give the hospital the right to place the lien. Since the hospital had already been paid in full there were no damages.
White v St. Alphonsus Regional Ctr.
Krivanec was injured in an accident and hospitalized at St. Alphonsus for about a month. The patient hired White, an attorney, to file a claim against the driver of the car on a contingency fee basis. No suit was filed and there was a settlement of the policy limit of $25,000. White did have some costs associated with this. St. Alphonsus filed a lien against the proceeds. White claimed he was due $6,250 in fees and $518 in costs. White lost since he had never filed a lawsuit as required under the state rules for attorney liens. The Court also ruled that the hospital was entitled to be paid by Krivanec, no matter if she received any money or not from a third party. Top
Burger v Lutheran Gen'l Hosp.
The plaintiff sued the hospital for malpractice. As
part of the pleading she wanted claimed invalid a newly enacted law stating that
any hospital personnel may discuss the case with hospital legal counsel.
The Supreme Court allowed the law to stand. Public Law 91-526 stated in
(b) All information regarding a hospital patient gathered by the hospital's medical staff and its agents and employees shall be the property and responsibility of the hospital and must be protected from inappropriate disclosure as provided in this Section.
(d) No member of a hospital's medical staff and no agent or employee of a hospital shall disclose the nature or details of services provided to patients, except that the information may be disclosed to the patient, persons authorized by the patient, the party making treatment decisions, if the patient is incapable of making decisions regarding the health services provided, those parties directly involved with providing treatment to the patient or processing the payment for that treatment, those parties responsible for peer review, utilization review, quality assurance, risk management or defense of claims brought against the hospital arising out of the care, and those parties required to be notified under the Abused and Neglected Child Reporting Act, the Illinois Sexually Transmissible Disease Control Act, or where otherwise authorized or required by law.
(e) The hospital's medical staff members and the hospital's agents and employees may communicate, at any time and in any fashion, with legal counsel for the hospital concerning the patient medical record privacy and retention requirements of this section and any care or treatment they provided or assisted in providing to any patient within the scope of their employment or affiliation with the hospital.
(h) Any person who, in good faith, acts in accordance with the terms of this Section shall not be subject to any type of civil or criminal liability or discipline for unprofessional conduct for those actions.
(i) Any individual who willfully and wantonly discloses hospital or medical record information in violation of this Section is guilty of a Class A misdemeanor. As used in this subsection, 'willfully or wantonly' means a course of action that shows an actual or deliberate intention to cause harm or that, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 210 ILCS 85/6.17(a), (b), (d), (e), (h), (i) (West 2000).
Southern Medical Group v Blue Cross
The medical group in Lake City, Florida is a one stop shop. They have in-house lab, x-ray CT and nuclear medicine. Blue Cross inspected them since the clinic was getting more money than others. The Blues stated this is too convenient for the patients and dropped the group. They then stopped paying the group and a owe the group about $350,000. The Group is suing for the money, the breach of the 90 day notification and a letter to their patients stating the Group was not providing good cost-effective medicine. 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.