November 15, 2009 Recent Legal News



Peer Review




Social Security


US v Hospitals

Three hospitals in Indiana, St. Francis, Deaconess in Evansville and St. John's in Anderson have settled with the feds for keeping patients overnight without adequate documentation for the stay.  The payments in order were $3,158,629, $2,110,034 and $826,256.  Three hospitals in Alabama settled for the same problem.  They are St. Vincent East in Birmingham, St. Vincent Birmingham and Providence Hospital in Mobile.  The paid in order $1,459,395, $422,748 and $381,713.  Earlier this year three Minnesota hospitals settled for the same thing.  They were HealthEast Care System hospitals.  All nine hospitals kept patients due to counseling by Kyphon to do so for the use of their kyphoplasty equipment.  Kyphon, now Medtronic Spine paid $75 million for the counseling.  This was a whistleblower case by Kyphon employees who will split $1.4 million.

US v U of Med & Dentistry of NJ

The New Jersey University agreed to pay $8.3 million for filing false claims and for illegal kickbacks to cardiologists.  They needed to do this in order to keep their cardiology program which had fallen below the required number of procedures.

US v Shrum

Dr. Kelly Shrum, an Arkansas OB, was indicted for using an unapproved IUD in patients.  She billed for a more expensive IUD that was approved but in Medicaid patients provided the cheaper non approved IUD.  She faces 3 years in prison.  

US v McAllen Hospitals of Texas

The hospital system was accused of illegal payments to physicians for referrals.  The payment in this whistleblower suit is $27.5 million.

US v Omnicare

OmniCare has agreed to pay about $100 million for illegal kickbacks to nursing homes for pharmaceuticals.  They got money from several Pharma firms as well.

US v Reddy

The feds have indicted Dr. Rajashakher Reddy, a radiologist in Atlanta, for submitting thousands of X-ray reports without he or any other physician reviewing the radiographs.  He had unlicensed people read the films and submit the report which he sometimes signed and sometimes had the people sign for him.  

US v Kaiser

Kaiser Permanente of Oregon has agreed to pay the government $1.6 million for false billing.  The problem was in the hospice program not having written certification of terminal illness as required.     Top


Wilkie v Aslam
USDC Maryland

The plaintiff went to Dr. Aslam for pregnancy.  The physician sent the patient for triple screen testing which was positive for Downs.  He did not tell the patient and indeed the daughter was born with Downs. The plaintiff sued for $15 million which included the costs of raising the child post majority. The Court agreed that the amount was reasonable and there should be no set offs and that the daughter would not be able to care for herself after majority.

Patients v Cedar Sinai
To Be Filed

Cedar Sinai of Los Angeles had significant overdoses in over 200 patients who had brain CT scans for stroke.  This was due to a malfunction in their CT scanner.  It led to patchy hair loss and erythema which should be temporary. There is also a possibility that the 8x normal dose of radiation may lead to early cataracts.  Cedar is now stating that they will pay for all medical costs caused by the error of all the affected patients.  One shyster has filed a class action suit when each patient had potentially different damages.

Rhode Island v Rhode Island Hospital

Rhode Island Hospital has been fined for its 5th wrong sided surgery since 1/07.  This time it failed to mark a correct finger and failed to do a time out as required.  They are now required to install audio and video in all ORs and mandated observation by a hired consultant of all surgeries for one year.  They also must pay a fine of $150,000. The surgeon has been referred to the State Medical Board. Several nurses may be reported to the Nursing Board.  It sounds like a hospital to stay away from.

O'Donnell v Boston University

Mrs. O'Donnell was a patient at the hospital and just finished surgery for a fractured hip when she fell while being transferred to a post surgical bed.  She had head injuries and died.  The hospital is accused of telling the family the patient did well with her hip surgery and only later told them of the fall and head injuries. The hospital paid $900,000. 

Mead v Legacy Health
Oregon Ct. Appeals

Mead went to the ER with severe low back pain and weakness of her legs.  The ED physician did a MRI and called Dr. Adler, the on call neurosurgeon.  Adler recommended she be admitted for paid control and discharged.  He did not come in to see the patient.  The patient's condition continued to get worse and Adler operated four days later but the patient had permanent damages.  She sued Adler and others.  Adler said since he had never seen the patient at the time of the alleged negligence there was no physician patient relationship.  The lower court agreed but the appeals court said otherwise.  They stated there was implied consent and a relationship due to the phone consultation and advice given over the phone was an affirmative participation in the care of the patient.  

Woods v Kent Hospital
In Trial

Actor James Woods is suing the hospital for wrongful death of his brother.  He entered the ED for vomiting and a sore throat and died within three hours of cardiac arrest.  The EKG was abnormal and no further heart w/u was performed.

Wojnicki v Warren Geriatric Village
Michigan State Court

In a med mal case against the facility and the physician the court ruled that the contract between the two stated that the facility would cover the malpractice coverage for the time of employment.  The physician was no longer employed but the facility had the duty to provide tail coverage for the physician for the time worked.     Top 

Peer Review

Whalen v Down East Hosp
Maine Supreme Ct.

 Dr. Whalen, an Orthopod, was denied a two year appointment due to a "low profiling assessment score."  He was given a one year appointment and at the end of the year was again reappointed for a year.  He eventually was denied employment.  He sued for the hospital not following their bylaws and the lower court agreed with the physician.  The Supreme Court stated that the bylaws are a contract but that the hospital followed the bylaws and therefore reversed the lower court decisions.  

Four Corners Neph v Mercy of Durango 
10th Circ

 Dr. Bevan, a nephrologist on staff was asked to participate in the setting up of a new dialysis center at the hospital.  He refused and another nephrologist was recruited.  Money was set aside by the hospital to subsidize the project for a time.  When the new physician came he was given exclusive privileges and Dr. Bevan was reduced to courtesy privileges.  Dr. Beven sued under antitrust and the courts turned him down because the hospital had no monopoly power and also there was no antitrust injury.  

  Adkins v Hosp of Houston Cty, Georgia

In an interesting case, the attorney for a peer reviewed physician was removed from the case due to conflict of interest.  The attorney was also the attorney for a former client who was a witness in the present case.  The attorney had gone to a patient who was going to sue the physician and convinced her that there was no malpractice.  He then became her attorney in a racial discrimination suit against the hospital.  The Court called the attorney's conduct rank skullduggery and engaged in unscrupulous conduct.         

Fitzgibbons v Integrated Health
Ca Ct App

The hospital sued the physician for defamation and breach of contract after the physician sent emails critical of the hospital to the MEC and outside agencies.  The hospital lost that case. The hospital was then accused of aiding and abetting the false planting of a gun in Fitzgibbon's car and calling 911 regarding a road rage incident.  The physician also alleged the hospital's comments following his arrest were libel per se and sued.  The hospital attempted to dismiss the case on an Anti-SLAPP statute which in California is used to protect a litigant from suit brought primarily to chill one's constitutional rights to petition the government.  The hospital was found to have nothing that would protect it from the suit.  The suit may go forward. I would hate to be that CEO and hospital attorney.       Top


QHG of Springdale v Archer
Ark App Ct

The hospital gave Dr. Archer a 180 day letter of termination for no cause.  Several months later he resigned his privileges due to a disability.  The hospital immediately terminated him.  The physician sued the hospital for breach of contract for not providing any call coverage for him during the contract. The contract stated a rotating call.  The lower court agreed with the physician and awarded him $387,500.  The Court of Appeal agreed with the physician that the hospital breached its duty thereby excusing the physician from further compliance.  The court said the amount of damages was too high and sent the case back for new damages.  The court also stated the claim for unjust enrichment against the hospital was ripe and could be heard since the physician had overperformed and needed compensation for his taking call.    

Raja v Englewood Hosp
MD Fla

Dr. Raja sued the hospital for racial discrimination after the hospital hired a competing gastroenterologist.  The physician did not show any significant bias and the hospital showed that they had hired another physician due to the non cooperation of Dr. Raja.

Elfenbein v Bronx Lebanon Hosp 

The physician sued the hospital after the hospital terminated him.  The physician claimed age and ADA discrimination.  The hospital showed that there was insufficient surgical volume and lack of specialized surgical training.  The surgeon's use of a cane after back surgery was not ADA protected discrimination and the surgeon was hired at age 68 which nullified the age discrimination. 

Gossman v Lahey Clinic

Dr. David Gossman, who worked at the Clinic for about 20 years was fired.  He states it was for refusing to use Medtronic stents which he believed were not the best for all patients.  He states that other cardiologists were pressuring he and others to use the stents so Medtronic would allow Lahey to participate in a future heart valve study.  The Clinic state the physician was fired for misconduct.  Gossman was fired shortly after giving a lecture giving concerns about the situation.      Top


California v Daniel

Dr. Christine Daniel, a physician Pentecostal minister on a religious TV show used her position to sell across the country her own extract to cure cancer.  She encouraged people to forego chemo therapy for her extract.  Patients traveled across the country and stayed in motels to receive the extract.  She has been under investigation for almost a decade without any attempt to shut her down.  She is still licensed in California.        Top


California Medical Assn v California

The San Francisco Business Times reported that the CMA has sued the state for their forced furlough action intended to save money.  The CMA states that the furloughing of people in the medical licensing department is illegal since the funding is by physicians and not by the state.  This has caused a large backlog in enabling physicians to enter the state and malpractice investigations.  

In re Miller
Vermont Supreme Ct

The Medical Board of the state summarily suspended Dr. Miller for prescribing too many narcotics and then gave him a hearing.  The hearing was within one month of the suspension.  He sued for not getting a hearing first.  There is US Supreme Court precedent for this.  The Courts agreed with the Board since there was potential imminent harm to the citizens.        Top

Social Security

Hall v Sebelius
District Court DC

Five retirees sued to not apply for Medicare and still receive Social Security benefits.  The court agreed with the plaintiffs and refused to dismiss the suit.        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.