October 1, 2003 Recent Legal News




Price Fixing

Sexual Harassment




Peer Review



Roberts v Williamson
Texas Supreme Ct.

The plaintiffs attempted to use the severe brain damage of their infant after settling with the hospital and one physicians to go for more by saying they couldn't have sex (loss of consortium).  The Supreme Court stated that this is not covered by a non-fatal injury to a child.  There is a law in Texas that the child of an injured parent may sue for loss of consortium (Is it any wonder why the Texas attorneys love to sue?).  

Ural v Levy
Dist. Ct. New Hampshire

The plaintiff went to defendant for back problems.  He was admitted to the hospital for elective back surgery.  He signed a consent that stated the physicians were independent contractors and not employees.  He had an injury and sued the doctors and the hospital.  He lost against the hospital on the apparent agency theory.  There is no reasonably prudent patient who would believe that the physicians were hospital employees after signing that consent.  

Hartnett v O'Rourke
10th Circ.

The plaintiff had a splenectomy with massive bleeding post-op from the splenic artery resulting in death .  The case was in federal court because of diversity of the combatants.  The lower court said no to the theory or res ipsa loquitor in this case and also gave a defense verdict on summary judgment.  The issue in the case is whether or not the surgeon had double ligated the splenic artery in the first surgery.  The 10th Circuit reversed the lower court on the issue of summary judgment stating whether or not a double ligature was used was a decision for a jury.  They agreed that the res should not apply.

Okuliez v DeGraaff
NJ Superior Ct.

 An OB treated a 36 year old patient for pregnancy.  Because of the patient's age the patient was referred to a perinatologist for an ultrasound.  The exam showed an ovarian mass.  This was discussed with the patient and it was decided to do "watchful waiting".  At delivery the on-call physician delivered a normal baby and then saw the patient in follow-up.  No mention was made by either side about the mass.  The next year the patient was having some symptoms and returned to the original OB.  She ordered a CT Scan and found ovarian cancer.  Surgery revealed metastasis.  The patient died after chemotherapy.  The family sued and presented expert testimony that what the OB did was below the standard of care.  The OB and her experts did not refute the plaintiff's experts.  The jury stated not guilty.  An appeal followed and the jury verdict was overturned and a new trial ordered due to jury confusion since the facts clearly were in favor of the patient.

Cryolife v Superior Ct. Santa Cruz
Ca. Ct. App.

Cryolife is a tissue bank that provided the tissue for a knee surgery which led to significant complications due to infection.  Cryolife stated that it is the same as a blood bank and sells services and not products, therefore would not come under strict liability and no punitives could be awarded without certain procedural niceties that were not done.  The trial court ruled against Cryolife on these issues but the Court of Appeal overruled the trial court.  Cryolife is indeed a seller of services and the articles sold are only incidental to the sale of the services.     

AHP Settlement Trust v Crouse, MD
Suit File

Dr. Crouse is accused of falsifying medical records for attorneys in the Phen-Fen debacle.  Dr. Crouse, a Fellow of the American College of Cardiologists, is accused by the trust in charge of distributing the money to the plaintiffs of not seeing patients, not taking histories and only scanned about 10,000 echocardiograms. She was paid $3.2 million by legal firms for eleven months of work to show their clients had heart damage. She signed about 2500 forms certifying the patients had valvular heart disease.

Ryan v Anne Aruendel Med. Ctr.

The suit accused the medical center and an emergency room physician of malpractice in the death of a 39 year old pregnant female.  The woman collapsed at a shopping mall and ws taken by ambulance to the hospital ED.  Standing outside the ED was a nurse on a cell phone who stated they would not accept the patient since she was pregnant.  She told the ambulance to take the patient to the OB wing.  She never got off the phone.  The fetus was delivered dead and the mother died from a spontaneous ruptured spleen. The suit also stated that the nurse was acting on orders from the ED physician not to admit the patient. 

Connolly v Aetna

 The district court stated that a  suit filed by Connolly against Aetna was for malpractice and not administrative decisions.  This means the case will be heard in state court and not as an ERISA case in fed court.  The suit is for Aetna's policy of how to treat pre-term contractions without considering the medical appropriateness of the policy.      

Meyers v Epstein

In an interesting case the court stated that when one surgeon is supposed to operate but another one does (ghost surgery) battery is not appropriate.  The court's reasoning is that the patient consented to surgery and the different surgeon did not cause the problem.  The injury could have occurred no matter the surgeon since it is a foreseeable complication of the surgery.  Battery would only be appropriate if a reasonable person would have not had the surgery.    Top


Dolan v St. Mary's Mem'l Home
Ohio Ct. App.

Dolan was Director of Nursing at St. Mary's and her supervisor was Sister Rachael.  Dolan found the Sister Rachael was verbally abusive to the patients and reported the abuse to an advocacy group which in turn reported it to the Ohio Department of Health.  They investigated and found the allegations true.  There was an unhappy Sister who wanted to know who the snitch was.  Dolan fessed up and agreed to a meeting where there would be no retaliation.  After the meeting the sweet Sister instructed Dolan that she could no longer talk to patient families, an impossibility for a nurse.  Dolan refused and was fired by the benevolent Sister.  Dolan sued for wrongful discharge and retaliatory discharge.  The trial court ruled for the Home on all counts.  The Court of Appeals stated there was no wrongful discharge due to the peculiarities of the Ohio law but there was retaliatory discharge and promissory estoppel on the promise for no retaliation.  They ordered the case to trial.

Sunder v Mandalapu
NJ Super. Ct.

Sunder hired Mandalapu to work in her pediatric office.  There was a restrictive covenant stating that for two years after leaving Mandalapu could not open a competing office within fifteen miles of Sunder.  There were many clashes between the two and finally Mandalapu left and looked for employment.  After finding no opportunities, she opened her own office twelve miles from Sunder.  Sunder sued for breach of the covenant and Magdalapu counterclaimed for $7000 due her.  The court stated that Sunder created a hostile work environment causing Magdalapu to resign and after first attempting to find employment she opened an office 12 miles away by the shortest route but 14 miles by the easiest route.  The hardship by making Magdalapu move several miles would not impact Sander.  The Court also agreed that Sander owed the money and order her to also pay costs.  This is an unpublished case.

Garrett v Young
Cal. Ct. App.

In an interesting pre-HIPAA case, Garrett asked her supervisor Lombard who she could see for stress.  Lombard recommended Young.  Young thought Garrett was severely depressed and referred her to a psychiatrist.  Lombard later called Young regarding Garrett and was told in general terms about the patient.  No mention was made of the psychiatric referral.  Garrett found out about the call and confronted Young who would not answer questions.  Later she saw a notice on Lombard's desk for her termination citing the stress.  Garrett resigned and sued Young for breach of confidentiality and invasion of privacy.  Garrett lost because she had talked to many people about her stress and therefore waived any privacy rights.  Young only released general information which is allowed under California Law Civil Code 56.10.  This information may be released without the patient's authorization.  I think this case would have come out differently under HIPAA.  

Univ. Kent. v Kent. Woman's Health Service
TRO Refused

A group of four OB physicians quit the University of Kentucky after one of them did not have her contract renewed.  They were occupying space in St. Joseph Medical Hospital East.  The University sued the practice to evict them from the space but the judge allowed them to stay.  The judge did allow the University to keep the name of the practice, the telephone number and the equipment.  The University quickly opened up another office nearby and hired many physicians and nurse practitioners to compete with the other group.  The original group delivers about 350 babies a year and accounts for about 13,500 visits a year.  The case will go to trial later but in the meantime the hospital is thinking about expanding and using the floor that the OBs are using as part of the expansion.  Could be a coincidence.  

Busch v Premier Int. Med. Assoc.
Ohio Ct. App.

 The two cardiologists who left the group were served with a covenant not to compete.  They sued and won since the group's desire of maintaining its size was not a good reason for the covenant.  The court also stated the same reasoning would allow the invalidation of the nonsolicitation agreement.  The court allowed the group to go after the cardiologists for taking the groups employees.          Top


Blankenbaker v Jonovich
Ariz. Supreme Ct.

Jonovich was injured in an auto accident and went to Chiropractor Blankenbaker.  Blankenbaker had a signed lien against any recovery by Jonovich.  When he tried to collect over $4000 for his "Chiropractic treatments" Jonovich refused to pay.  The Chiropractor had failed to record the claim with the county.  The trial court through out the claim and held the agreement invalid.  The Court of Appeal reversed and said it was close enough to have a good lien.  The Supreme Court reversed the trial and appeals court.  The chiropractor did not have a valid lien since he did not record the lien and attempted to enforce the lien against Jonovich, which is against state law.  However, the agreement to pay the money is still valid even if not a lien.        Top

Price Fixing

US v North Texas Specialty Physicians

The government has filed its third case against physicians in the north Texas area.  This one is against the 600 physician group for refusing to negotiate except on collectively agreed upon terms.  The Group had polled their members on the fees they found acceptable and then went with an average of those fees to bargain with HMOs.  About a year ago the FTC settled with System health Providers and then several months ago settled with Southwest Physician Associates all in the Ft. Worth Dallas area.  

US v South Georgia Health Patnrs.

This large PHO with its 15 hospitals and five IPAs has settled with the government.

US v Souaid, MD

Dr. Victor Souaid, a urologist in the Ft. Lauderdale, Florida area, has pled guilty of poor billing.  He gave patients less than the standard dose of Lupron but billed the insurance companies for the full dose.  He will be fined, potentially jailed and then deported to his homeland of Canada.    

US v Saad Antoun, MD

The judge in the case of Dr. Antoun, a urologist who pled guilty to submitting false charges for Zoladex, has given him a slap on the wrist.  The doctor received no prison and was fined $20,000 and restitution of $45,965.  He was also given one year probation.  The judge stated it was AstraZeneca and not the doctor who was the real culprit.  

US v Tenet

The FBI has accused Dr. Patrick Campbell, who has filed suit for a part of the $56 million recovery, as being a greedy liar.  The FBI states that Dr. Campbell not only never told the government about the alleged Tenet scam but continued to send his patients to the accused cardiologists and surgeon.          Top

Sexual Harassment

Maheshwari v vista Hosp. Sys.
Cal Ct. App.

The physician had been warned in writing on several occasions about inappropriate behavior.  The physician sued since the letters did not give him fair procedure.  He lost.  The letters do not inhibit his practice of medicine and therefore did not mess up any economic interest.  

Lipscomb v Sisters of St. Francis Health Svs.
Ill. App. Ct.

A child was misdiagnosed as being sexually abused due the the negligence of the defendant.  The child was transferred to another hospital within the system where the child was continued to be asked questions and having more physicals due to the alleged but wrongly accused original report.  The second hospital then filed a report with the Illinois Department of Family and Children who after several days investigated.  The trial court stated the hospital was immune for reporting under the statutes.  The appellate court reversed stating the conduct was more than reporting, they also started an investigation and could be held liable.         Top


US v Mina Nazaryan

The Assistant Administrator of Tenet's Alvarado Hospital in San Diego has been arrested for obstruction of justice.  She has been charged with attempting to tamper with witness testimony in the alleged scheme to pay illegal kickbacks to clinics that sent the hospital patients.  Nazaryan had funneled about $1.1million to a group of retina surgeons to relocate near the hospital.  She received kickbacks fro the group totaling about $58,000.  When she learned the group had been contacted by the feds she appeared at the door with a suitcase of silver and jewelry stating that the group could state that this is what the money paid was for. 

US v Hurwitz, MD

Dr. William Hurwitz a McLean, Virginia, pain specialist has been indicted of being the leader of a conspiracy to illegal distribute OxyContin.  He faces life in prison.  The case shows the problem of physicians attempting to do pain management for their patients and the government stating the physicians are responsible for what happens to the prescribed drugs.  He is also charged with drug trafficking resulting in death or serious injury.  The prosecutors accuse Dr. Hurwitz of getting his patients hooked on the drug and then charging the patients a monthly fee to continue to have the drugs prescribed.  He also charged an initial fee of $1000 per patient and then $250 per month.  He had his license revoked in the past and is now on probation.  He had stopped practicing a year ago.  He did market the drugs and apparently did no exam on patients.        Top


Grier v Bonnyman

In a settlement that should have been done by legislation and not via the courts, TennCare will no longer pay for 14 days of medication but only 3 days until the physician can change to a formulary drug.  This shows how backward the program is.  When set up this should have been part of it.  If not then the program should have changed it years ago. If the program did not have the authority to change it, they should have.  It is mind boggling that this program had no preferred drug list.  This is only good until 2006 and then must be overtly continued or go back to the 14 day policy.        Top

Peer Review

Whiteman v Rawitscher
Ohio Ct. App.

During a malpractice case, a member of a peer review panel was asked 4-5 questions about the peer review but nothing about the discussions held during the review.  The hospital forbid the physician to answer the questions and this ensued.  The court stated that the malpractice plaintiff has the right to know who witnesses are that testify, if a review occurred, when it occurred and whether a physician was present were permissible.        Top


Conn. v Blues

Blue Cross and Blue Shield in all their identities have been added to the large suit against insurers now before Judge Moreno in Miami.  They are accused of racketeering.        Top


DiBlasio v Novello
2nd Circ.

The New York Department of Health Commissioner summarily suspended the license of a radiologist.  The Commissioner then issued two press releases stating the license had been suspended due to incompetence and the second stating the incompetence may have been criminal and led to patient deaths.  The Medical Board found no evidence of misconduct and gave the radiologist back his license.  The radiologist then sued the Commissioner, who defended as absolute immunity.  The court said no, the immunity is only qualified and the case may go to trial.        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.