November 15, 2013 Recent Legal News


Peer Review and Employment






US v Barnes

Denetria Barnes, a nursing assistant in Clearwater, Florida, pled guilty of conspiring to defraud the government and wrongfully disclosing HIPAA information.  She and her co-conspirator Jakiel Bazart obtained patient information and sold it to undercover agents.  She was sentenced to 37 months in prison and repay $12,000.

Physicians v Blue Cross
To Be Filed

In a strange turn of events a mis-posting on line by the insurer put 5800 physicians at risk for identity theft.  The ID numbers and SSN were available for all to see.  They will pay for free credit monitoring.

Patients v University of California
To Be Filed

A laptop computer was stolen from a locked car.  The computer was supposedly encrypted but the University can not confirm this.  On the computer were the medical records of about 8300 people.  This is the second in a month for the University.  Another laptop was stolen last month with the information of 3500 patients.  Isn't EMR wonderful?        Top

Peer Review and Employment

Prothro v Prime Healthcare Services
D Nev

Dr. Prothro, an interventional cardiologist, had problems at his hospital and was removed from the staff.  He has claimed dyslexia and ADA protection.  The hospital signed a contract with him acknowledging his problem and then did not, according to the physician, make the necessary accommodations as required by law.  He sued under the ADA.  The federal court said there was no federal law involved since he was not employed and any problem with the contract would be a breach of contract suit.  This would need to tried in state court.

Shervin v Partners Healthcare

 Dr. Shervin, an orthopedic surgeon, sued the hospital for gender discrimination.  The basis was their report to the American Board of Orthopedic Surgeons who would not allow her to sit for part II of her board exams.  The hospital asked for but was denied access to the ABOS peer review information regarding what the hospitals after her stint at Prime.  The court stated that the ABOS had their right to peer review confidentiality and that Prime could get any information by asking the hospitals directly.

Sadeghi v Sharp Memorial
CA Ct App

Dr. Sadeghi, is an interventional cardiologist that did peripheral work.  He and his partner did most of the work at the hospital.  His partner cut back significantly due to personal issues and this left the load on Sadeghi.  His work and anger issues became significantly worse until one particular case when he worked 18 hours on one patient who refused an amputation.  The staff reported him to the powers that be and he was summarily suspended.  He appealed and was told that suspension would be reinstated if he did not do certain things.  He didn't and they did.  He sued and lost on all counts.  

Brintley v St. Mary Mercy Hospital
6th Circ

Dr. LeCesha Brintley accused the hospital of racial discrimination after she was removed from the staff.  She had cut two arteries during an appendectomy and the patient was in a coma.  She refused other interventions prior to being removed from the staff.  She had no standing as she was not an employee.  She attempted to say the bylaws created a contact giving her employment status.  This also failed.  She then attempted to say the state discrimination claim was valid since others were treated differently.  The court also found that un-credible since they did not have as serious complication as did Dr. Brintley.

Roberts v Saint Thomas Health Services
Tenn Ct App

In an interesting case that may prove a primer for others, Dr. Roberts did not live up to the hospital's standard of care.  He was suspended and informed by letter of his ability to have a peer review hearing.  He waived the hearing and agreed to other conditions in lieu of suspension.  The hospital then reported him to the NPDB since his suspension was for over 30 days.  He sued the hospital who won in summary judgment.  The appellate court said he could have rebutted the charges that led to his suspension if he would have not waived his hearing.  

Steinberg v Good Samaritan Hospital
D Neb

 Dr. Steinberg, a psychiatrist, was a locum tenens at the facility.  A week  before his time was up a patient hit him and the staff reported that he responded inappropriately.  He was suspended and offered a hearing which he refused.  The hospital filed a report with the NPDB which the physician challenged.  He won the challenge since the report was not required due to the fact that his tenure was due to expire less than 30 days from the time his privileges were revoked.  He then sued for defamation.  The hospital moved for summary judgment which was denied.  It is a matter for the jury to decide if the statement sent to the NPDB was true or not which is important to the cause of the suit, defamation.

Cashion v Smith
Virginia Supreme Court

Dr. Smith, a trauma surgeon employed by Carillon Medical Center, took a patient to surgery who died during the case.  He then told the anesthesiologist Dr. Cashion in the OR that he did not do his best, he did not try and that you gave up on him.  Later he stated in the hallway that he euthanized the patient.  Cashion  sued Smith and the hospital employer for defamation.  The lower court said that the early statements were opinion and not actionable.  The later statement was actionable.  The court stated that since there was not malice the privilege was not overcome and awarded summary judgment to the defendants.  The high court reversed in part.  They stated that the statements were capable of being proven via expert opinion as to whether or not Cashion could have done better or more.  Therefore, it was an error to call them non-actionable.  The high court also disagreed with the lower court stating that whether or not Dr. Smith lost his privilege was also a matter for the jury.        Top


Patel v St. Luke's Sugar Lang Partnership
Texas App Ct

Several physicians sued the partnership with the hospital for breach of contract and injunction after the hospital general partner called for a capitol contribution without any input from the physician partners.  The physicians did not pony up and the hospital proceeded to divest them of their interest.  The lower court dismissed the suit as moot since the partnership had already done what the physicians were asking the court to stop via injunction.  The appellate court reversed and allowed the suit to continue. This shows the problems with having the hospital as a general partner where they should be equal partners.

Employees v Summerlin Hospital

The employees, visitors and former patients of the hospital sued for damages stating the hospital in Las Vegas did not protect them from a woman and a newborn's active TB.  They allege the hospital allowed the woman to visit her newborn twins after in the neonatal ICU.  All three died of active TB.  The husband is filing a separate med mal suit stating the hospital should have diagnosed the disease and started treatment.  The hospital has been cited by the County for not warning people about the exposure.

California Department of Insurance v Sutter Health

 Sutter Health, on the day the trial was to start, agreed to pay $46 million for their "false and misleading charges for anesthesia".  They added thousands of dollars for anesthesia charges that were already covered by other billing for the hospital OR. This was originally a whistle blower complaint by auditors for the hospital.  The hospital beside paying the money agreed to disclose its actual costs and prices for each part of its anesthesia billing.  They also agreed to allow insurers to more easily contest its bills and to charge for anesthesia on a flat fee basis.        Top  


Price v Brookdale University Hospital

In a case of very poor lawyering the suit against the hospital was dismissed for the federal EMTALA claim and the court them refused to exercise supplemental jurisdiction of the state claims.  The attorney claimed EMTALA for a patient that died several weeks following her discharge from the hospital.  She obviously had been stabilized at the hospital and EMTALA ceased then.

Grove v PeaceHealth St. Joseph Hospital 
Washington Ct App

In an interesting case the patient underwent open heart surgery and post op was monitored by a team of physicians and hospital personnel.  He got a permanent leg injury and sued the team and the hospital.  The jury found the hospital guilty but the judge and the appellate court overruled the jury.  They stated the plaintiff had not proven which plaintiff caused the injury.  The physicians and the physician assistants are held to different standards of care and by not proving one or the other broke the standard of care they did not fulfill their burden.  The lead physician of the team could not be liable since he was out of state when the inju8ry occurred and had left someone else in charge.

Rettger v UPMC Shadyside 
Penn Superior Ct

The appellate court upheld the $14.2 million jury verdict against the hospital.  The patient was found in another hospital to have a mass in his brain and was transferred to UPMC.  He was scheduled for surgery at 7:30 am four days later.  At 1 am on the day of surgery a nurse found a fixed and dilated pupil and reported it to the neurosurgeon.  No action was taken as an emergency either by the neurosurgeon nor the employed nurse and the patient was later placed on life support and operated as an emergency.  He later died.  The award was for malpractice causing his death as well as for later economical damages plus interest.          Top


Korte v Sebelius
2nd Circ

The appellate court ruled that a Catholic business owner could not be made to purchase health insurance for the employees that went against his/her religious beliefs.  In this case it was contraception.  This is line with two other courts and against the rulings in two other jurisdictions.  The Supreme Court may get involved.

Hobby Lobby v Sebelius
US Supreme Court

The Supreme Court will take up the issue of contraception in Obamacare during the current term.  In a side bar note, the European regulators have stated the oral emergency contraceptive does not prevent the fertilized ova from implanting into the uterus.  The drug companies in the US have to request the FDA change the wording in this company.  They are presently studying the research available.         Top 


Patients v J&J

J&J has agreed to pay a total of $2.5 Billion to settle almost 8000 claims of faulty all metal hips implanted into patients.  The lawyers are loving the deal.  The plaintiffs, not so much. According to the attorneys all the plaintiffs in the class action suit will get about $160,000 for pain and suffering.  There will be an additional $475 million for compensation to those the most severely injured.  J&J has also agreed to pay claims from private insurers and Medicare seeking to0 recover their costs of operations and other medical treatments related to the device.  The attorneys are getting 1/3 of the settlement, about $800 million.  The firms that helped developing the cases and negotiating the settlement will get a bonus of abut $160 million.  J&J will not go through with the settlement if under 94% of the claimants do not take the deal.  

US v Vantage Oncology

Vantage of multiple states owns radiation and chemotherapy centers.  This settlement is for the two in Illinois.  The allegation is over billing and double billing along with radiation without a physician present.  Vantage will pay $2.08 million for the settlement of the qui tam suit.  The realator will get about $350,000.

US v Goldberg

Drs. Richard Goldberg and Gary Leeds, both of Connecticut, pled guilty of receiving bribes (kickbacks) for sending blood samples to a lab in New Jersey for analysis.  The two have each agreed to pay just over $100,000.  Sentencing is 2014.

US v Katz

Dr. Jose Katz, a well known cardiologist, was sentenced to 78 months in prison and payment of $19 million for unnecessary tests and subjecting patients to life threatening procedures that were not necessary. He admitted to falsifying records and after major Spanish television advertising had his unlicensed personnel perform the same battery of tests even if not ordered.  

US v Perales

 Dr. Constantino Perales of Peru, Illinois, was arrested on federal drug charges.  He had previous been arrested on the same charges by the Illinois police.  These charges are now dropped.  He had surrendered his medical license and DEA number when he was arrested by the state in August.  He is accused of dispensing Oxy outside the medical practice and without medical necessity.

US v Jase

Dr. Anthony Stephen Jase of New Orleans was sentenced to 15 months in prison and pay $360,000 for signing prescriptions for wheelchairs for patients he had never seen.

US v Panos

Dr. Spyros Panos Orthopedic Surgeon of Poughkeepsie, New York, pled guilty to medical fraud for claiming open surgeries when he did arthroscopic ones, lied about the techniques used to get more reimbursement and lied about the size of loose bodies removed from joints.  He has agreed to pay back $5 million, never practice medicine again and get rid of his medical licenses.  he will be sentenced in March.        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.