A Chester Pennsylvania physician here from Pakistan for two years and an American citizen had his home broken into and his family held at gun point by an FBI raid. The Feds also broke into a building owned by another Pakistani, the city health commissioner for 7 years. The feds would not state what was seized or why the raids. The physician's wife stated that they took her prescription for Cipro that she uses for endometriosis. The physician has been served with a subpoena to appear before a secret grand jury. The documents utilized for the search warrant were sealed. At the office the agents took glue, rubber gloves and face masks
The Feds are beginning to crack down on California marijuana clubs. The Supreme Court ruled last year that the distribution is illegal. They did not rule on the medical necessity defense. California has a law stating that those with a legitimate need for marijuana for medical conditions may grow their own or purchase small quantities for personal use. The Feds raided the offices and confiscated the records of a physician and her attorney husband in Cool, California, near Sacramento. A San Francisco Supervisor has proposed legislation that the city is to become a medical marijuana sanctuary. This is of course illegal. The District Attorney has stated that several Bay area clubs have moved patient records off site to avoid capture by the Feds. Nevada has passed a constitutional amendment that legalized medical marijuana. This states the State must assure the drug may be obtained. It is doubted that the Feds will arrest the Governor who is the enforcer of the law. Top
Diaz v NY Downtown Hosp.
An employee of a hospital independent contractor sexually assaulted a hospital patient. The patient sued the hospital and the trial court denied a summary judgment for the hospital. The appellate court overturned that decision due to the tortfeaser having been check by the independent contractor and therefore would not be reasonably foreseeable that the person would attack the patient. The hospital had only guidelines, not rules, that a female would be present during any female exam.
Mealand v Eastern NM Med. Ctr.
In a wake-up call for all employers, a nurse hired as an at-will employee was fired. She argued successfully that the hospital did not have an unfettered right to fire her because of statements in the employee handbook. The handbook stated that she would be given a chance to defend herself against misconduct charges in an investigation by the HR department. This is yet another example of how an employee handbook may modify the at-will arrangement. Top
Moore v Gunnison Valley Hosp.
A summarily suspended physician sued under a federal civil rights claim for his due process. The physician was suspended after an incident at another hospital, not the hospital that suspended him. Gunnison then admonished the physician twice for the same conduct that caused the prior suspension. The physician demanded that the admonishments be dropped or he be given a due process hearing. The hospital refused to do either. The hospital came to court to quash the due process case against it and the members of the medical staff for immunity. The court found that the public interest favored only a qualified and not an absolute immunity. The court stated that if the physician's claims were taken as true, his due process rights were knowingly and wantonly violated by the peer review decision. The case proceeds to trial. The moral here is follow due process. Do to another as you would want done for yourself.
Long v University Hospital
The Georgia Supreme Court is hearing a medical peer review case. The hospital has accused the physician of substandard care and the physician has accused the hospital of lack of due process due to the use of unsubstantiated hearsay. One of the complaints against the OB/GYN was that he used a pocket knife to remove sutures. The defense was that this was done to show medical students how to use non-traditional tools in emergencies. The knife had been sterilized.
In a case steeped in legal stupidity and ego a group of physicians in Lancaster, Ohio has sued Columbus' Mt. Carmel Hospital to stop their building of a hospital in Lancaster. The physicians and Mt. Carmel are co-owners of a surgical center in Lancaster. Their agreement states there is a no competition clause. The hospital states this was to keep other physicians from moving to the area, not for prohibiting a hospital. However, that's not what it says. Mt. Carmel has refused to get out of the surgical center nor pay the physicians for the non-compete agreement. They have owned the property for two years and have not done anything with it. If they lose the suit, a possibility, they will lose the hospital and need to pay the physicians plus all the attorney fees they have already paid. they will lose the loyalty of the physicians. The hospital is in a lose-lose
The AP reports the son of one of the postal workers that died from Anthrax has filed a $37 million malpractice suit against Kaiser for failure to prescribe antibiotics, although his symptoms were compatible with Anthrax. The suit alleges that the patient told Kaiser that he worked in the post office that processed Sen. Daschle's tainted letter. A culture was done but the patient was never told the results. Kaiser said they will defend the suit vigorously. I doubt that's true. The settlement will come shortly and will be secret. I don't know how Kaiser works in the rest of the country but in California no law suit is allowed, only binding arbitration. This is shown in the next case.
Pacheco v Allen
The wife of a Kaiser patient sued Kaiser for her husband's death of pancreatitis. Kaiser had an arbitration clause in their contract that was signed by the decedent. The trial court stated the case had to go through binding arbitration. the Court of Appeal reversed and stated that the wife never signed the arbitration agreement or agreed to the arbitration clause. Also, since the wrongful death action was different from any action her husband may have filed, the arbitration agreement did not pertain to her.
Edwards v Superior Ct. of LA (Kirianoff)
California has a ninety day notice that must be filed prior to filing a medical malpractice case. This case involves the filing of the notice but not specifying all causes of actions in the notice. The court, in an initial impression, stated that as long as the notice was filed and gave notice to the practitioner that he/she was being sued, it did not have to be specific.
The physicians of North Carolina are appealing a Court of Appeal decision to the State Supreme Court. The Appeals ruling threw out the requirement passed by the legislature of that is present in many states of having a physician review the case prior to filing to make sure it has merit. The court stated it violated the state constitution and the state and federal equal protection clauses. The trial attorneys are the pushers on the other side. In a typical trial attorney statement an attorney stated that a million dollars is not adequate compensation for a lost hand. All want the hand back. This is a non-relevant statement.
Stover v Garfield
A physician relying on the instructions of the patient's wife, who was not the patient's legal guardian, discontinued life support on a patient. There was an advanced directive stating the patient did not want the withdrawal of nutrition. The estate sued the physician under non-malpractice concerns to avoid obtaining the required affidavit of merit from a practitioner. The malpractice insurer declined to defend stating this was not malpractice. The physician sued the carrier and won in the trial court but the court of appeal overturned the decision. The court did not believe that the negligence occurred within the course of a professional relationship. This left the physician without coverage and bare to the claim. If he was an employee of a hospital or HMO they would be possibly liable by vicarious liability.
Warden v Naglie
In this superior court decision the judge took to task the physician's attorneys for undue influence over one of their experts. The expert changed his testimony between the deposition and the trial. The judge ordered the attorneys to pay $34,769 and referred the matter to the state bar, medical board and the district attorney. The monetary amount was for the time spent by the plaintiff's attorneys and the court on post-trial time spent due to their deceptive conduct. Top
Murillo v Griffin Hosp.
A visitor who accompanied a patient to the emergency room announced she was going to faint. She then did and was injured. Does the hospital owe a duty of care to this visitor? The court tossed the case due to lack of forseeability that the visitor was actually going to faint and this type of duty of care was against public policy. Top
The Sulzer saga continues. After the federal judge stated that the settlement may not be a good idea, Sulzer has sweetened the offer. They are looking to increase the amount of the class settlement to greater than the current $783 million. Of course, if the settlement does not go through, Sulzer will go into bankruptcy and nobody will get anything. Top
US v Danbury Hospital
Danbury Hospital of Connecticut has settled a Medicare fraud case against it for $7.5 million. The hospital was overpaid and the last of seven to settle because Blue Cross and Blue Shield falsified cost reports for three years in order to hide its ineptness in meeting fiscal standards. The overpayments were deliberate to not lose their Medicare process contracts. In 1998, Hospital of St. Raphael notified the feds of the overpayments. Top
North Carolina has now targeted two more physicians licensed in the state for unprofessional conduct. They are working for a commercial concern that puts the patient requesting Cipro and the physician together in a private chat room and after an online conversation, Cipro is dispensed by an arm of the commercial concern. The concern has now stopped taking any Cipro orders from residents of North Carolina.
Since this practice has become known the Virtual Medical Group has stopped prescribing Cipro on line period. Top
In Parma, Ohio two brothers have been accused of fraud to the tune of $240,000. They claimed that they both ran a clinic in Parma. However, one brother was really running a bar in Berea. The brothers were also accused of physician kickbacks and patient over billing. The Gallo brothers, Mark & Angelo, ran outpatient therapy centers in three states doing respiratory, physical and occupational therapy. The company paid $76,000 to physicians who referred patients to them. Top
Cunningham v Pfizer
On the day a jury was to be picked the parties settled. The settlement is sealed but the original suit was for $175 million. The cause of the suit was Warner-Lambert did inadequate testing and created an inherently dangerous drug. The drug worked well for diabetic control but did cause liver problems. Pfizer, the purchaser of Warner-Lambert denied the drug had anything to do with the 61 year old Cunningham's death following a liver transplant. Top
Rounds v Jackson Park Hosp.
There was no attorney client privilege for incident reports written by nurses shortly after the death of a fetus. The reports were made in the normal course of business and not under the direction of an attorney, so are discoverable.
Potts v Williams
Plaintiff in malpractice suit for shoulder dystocia found all the prior testimony from the defendant's expert. The defendant requested discovery of this information and was refused, since it was his expert and he could get the information himself.
Doe v Bd. Trustees St. Agnes Med Ctr.
The unnamed physician was found to have a much higher infection rate than his peers and also much higher than the national standard. The medical staff executive committee recommended action which limited his privileges. The physician appealed to the Judicial Review Committee. At the committee he argued against the hearing officer and a new one was placed. He argued against the lack of specificity of charges against him. This was also taken care of by having the outside reviewer's report given to the physician. He filed a writ of mandate arguing the lack of due process in the hearing. The courts turned him down since there was no hearing as yet and that the court believed the hospital had provided enough due process. This case shows what happens when a hospital medical staff forgets to amend its by-laws to conform to state law and attempts to cut corners. Yes, they won in court, but at what monetary cost. Top
Williams v Toyota
The high court has heard arguments in the above case and will render a decision in mid 2002. The case involves Williams, an employee for Toyota, who can not perform all the tasks required of her on the assembly line due to carpel tunnel syndrome. Toyota states that they can not make reasonable accommodation for Williams, an otherwise qualified individual. The question is whether the ADA covers those individuals who can do part of the required job but not the whole job due to a disability. Industry wants to stem the law suits they fear if people sue for not being able to perform only a few tasks. Top
Ingram v Mutual of Omaha Ins.
Mutual was sued for a release of the plaintiff's medical records under a subpoena. The patient was a witness in an unrelated case. The question before the court was whether or not the company had a fiduciary duty to the patient and breached that duty be the record release. The Court sided with the plaintiff since the records would be those normally held and protected under a physician-patient relationship. The court also stated that this duty did not go away with a subpoena. The company could have protected the disclosure by filing a motion to quash or objecting to the attorney who requested the records.
Berger v Sonneland
In a legal technical decision a patient lost on a case involving the unauthorized release of information from her current physician to a past physician, her ex husband. The ex husband after finding out about the patients medication use filed for custodial changes of their children. The patient sued the present physician for medical negligence and emotional distress. The trial court tossed the case since there was not expert witness for the plaintiff. The court of appeal reversed the trial court and in turn was reversed by the Supreme Court for the same reason as the trial court, lack of an expert to prove the causation of emotional distress.
Pina v Espinoza
Pina sued Espinoza for damages related to a motor vehicle accident. The defendant, in discovery, asked for the names of all treating physicians in the past five years and authorization for a general medical release of those records. Pina objected stating the request is too broad and needs to be relevant to the accident. The trial court ruled for the defendant stating that when the plaintiff put her medical, at issue she waived the physician patient privilege. The Court of Appeal reversed the trial court stating the New Mexico law is that the release of information should be relevant to the accident. The court stated the way this is to be decided is like the federal courts. The federal courts require the party asserting the privilege (here the plaintiff, Pina) to provide the other party with a list or log that describes the document without disclosing the allegedly privileged information it contains. The New Mexico disclosure rule is for communications and not documents so the plaintiff would need to assert the privilege with certainty for each communication not for each document. This is to allow the court and opposing party to assess each claim of privilege.
Business Week has published an article on How to Keep Prying Eyes off Your Medical Records. This is a good article as it gives both sides of the privacy issue. Top
SummaCare, a MCO in the Akron, Ohio area was sued last year by a physician whop was removed for refusing sign a one sided plan to lower what he was to be paid. That suit was initially resolved in the physician's favor. The suit was tossed last week after the two parties settled. Now the same judge will hear a suit against SummaCare for intentionally not paying the physicians money. The MCO withheld 10% of monies owed to physicians under a contract. SummaCare states they had to withhold in order to meet the State's fiscal requirements. That may or may not have been true but they now have enough money and could pay the physicians. Top
Nguyen v State of Wash. Dept. Hlth.
Nguyen was licensed in Washington. In 1989 he had his license revoked and stayed providing his work was supervised. In 1994 charges were again issued against Nguyen but deferred for two years while the Colorado Personalized Education for Physicians reviewed the case. Based on this recommendation Nguyen was told he had 22 cases of unprofessional care and did not comply with the 1989 probation. Later that year Nguyen had his license revoked and this was followed by a hearing where under the preponderance of evidence standard his license was permanently revoked. He appealed and lost in both the lower and court of appeals. The Washington Supreme Court overturned the lower courts. Their conclusion was that the burden is not the preponderance but the clear and convincing standard. The Court felt that the standard needed to be higher than mere monetary damages. The Court quoted the three prong test of the old case Matthews v Eldridge. These are (1) a private action affected by the government action (2) the risk of erroneous deprivation by the procedures used and (3) the government interest in the additional measures. The court stated that not only is Nguyen's property interest affected but so is his liberty interest in preserving his reputation. The court also stated the medical disciplinary action was akin to a quasi-criminal action and a higher standard needs to be applied. This means Nguyen needs a re-hearing. Top
In an interesting twist the appeals board has ruled that the Plan must pay for a liver transplant for a Medicaid recipient with Hepatitis C and is HIV+. This is the same plan who earlier this year won a court decision denying payment for the same treatment and same disease in a private pay case. Both patients have now been placed on the University of Pittsburgh waiting list. 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.