October 1, 2007 Recent Legal News



Peer Review




Ambulatory Surgical Clinics


US v Sulzbach

In a fascinating case the government has filed a claim against Christi Sulzbach, the former chief counsel for Tenet Healthcare.  The claim states that in 1997 and 1998 she certified that Tenet was in compliance with all federal rules when in fact they had violated some Stark rules.  Tenet had settled with the feds over this violation by paying $22.5 million but this settlement did not release the attorney from liability.    

US v Vasquez-Ruiz
7th Circ

The physician was convicted of multiple counts of fraud.  Just prior to deliberations one of the jurors found the word "Guilty" in the middle of her notebook.  She felt this was meant to intimidate her.  The judge was notified and refused to call a mistrial.  That was an error and so they all get to do it again.      Top


Currier v National Board Med Examiners
Mass. Superior Ct.

Mrs. Currier is a nursing mother who applied for extra extra time to take the exam due to her need to pump milk every three or four hours.  She is already getting extra time on the exam but wants more.  After she was turned down by the Board, she sued and lost again.  Nursing mothers are not a protected class.  She plans to appeal and wants to hear before she takes the exam again next week.  This medical student is already covered under the ADA and is getting extra time for the exam due to dyslexia and ADHD. 

The appeals judge in a 22 page opinion went against law and gave Ms. Currier the extra time necessary to pump her breast milk.  This is to give her equal standing with non lactating women.  The Board will appeal the decision and has stated that if the ruling still stands when the student takes the exam on October 4, they will comply.   

Duffy v Delaware

A federal judge has ordered the State of Delaware to give Mrs. Duffy Medicaid without a one year residency requirement.  The judge stated that Mrs. Duffy is severely disabled and that the loss of Medicaid would impair her ability to move across state lines from North  Carolina to Delaware to live near her parents.  This is an unlawful restriction on a persons right to interstate travel.  The judge struck down the entire one year rule.          Top

Peer Review

In re Intracare Hosp
Texas App. Ct.

The Court of Appeal allowed an occurrence report regarding a injury to a nurse to be protected since it was prepared for the Safety Committee, a medical staff committee.  It was used to help provide a safer hospital environment.

Lee v Blue Shield 
Ca Ct App

California Blue Shield terminated Dr. Lee from its plan and offered him a "fair" hearing.  Part way through the process Blue shield dropped the "fair" hearing and stated he was being dropped not for a medical reason but for not complying with discovery requests, an administrative reason.  The Court said no way.  Although Dr. Lee had not exhausted all his legal remedies the lower court should have converted Lee's suit for damages into one for getting a hearing.  The court went on to state that the physician could lose his right to a hearing if he was disruptive but that was a matter for a hearing panel not the insurer.  Blue Cross was ordered to reconvene a hearing.

Macheski v Leavitt

Dr. Macheski was denied payments for seeing Medicare patients.  He failed to ask for a hearing in the required time and when he did ask for a hearing before an administrative law judge the request was denied.  The physician appealed the denial and was denied again.  He then filed suit to get the hearing.  The HHS pled that the physician had not exhausted his administrative remedies and could not sue.  The court disagreed.  When there were no hearing due to HHS not allowing them, the physician has no recourse.  The request by the HHS to dismiss was dismissed.   

Fox v Good Samaritan

Dr. Fox is a qualified pediatric critical care specialist.  Good Samaritan changed its pediatric ICU privileges in a manner that Dr. Fox believes was designed to exclude him.  He has sued Good Sam three times in state court over the years since the ICU rules went into effect.  He has lost on a writ of Mandamus all three times.  He now is in federal court on the same facts.  He has asked to amend his complaint to add the parent corporations of Good Sam and the claims of RICO, slander, libel and prospective interference with economic relations.  The court allowed the additions of the parent companies as well as the prospective interference complaint since it is based on the original facts.  The court denied the other amended additions since that would have allowed additional discovery and time to this already long suit.     Top


Planned Parenthood v Missouri
Fed Ct. Missouri

I had reported that Missouri had imposed a requirement that all clinics that performed five or more abortions a month be registered as an ambulatory surgical center and be regulated as such.  This would have required increased parking, more personnel and more equipment.  Planned Parenthood sued the State and won a temporary restraining order against it on the regs.  Planned Parenthood must tell the state which of the proposed regs it wants waived within thirty days and the state must then respond within thirty days.  In the meantime Planned Parenthood may continue to have business as usual.  

Feminist Women Health v Burgess
Ga Supreme Ct.

The name of the plaintiff gets me.  The high court ruled that third party providers had standing and the individual had to exhaust administrative remedies prior to suit.  The plaintiff did medically necessary abortions under Medicaid and were refused payment by Georgia Medicaid since there was no endangerment to the mother nor any rape or incest.  The parties sued on privacy and equal protection.  The court used the US Supreme Court's Powers Test to determine if the clinic had standing.  The Court also found that there was no adequate administrative remedy without challenging the constitutionality of the rule.      Top


Long v Kaiser
San Diego Superior Ct.

It is very unusual to see Kaiser in a courtroom since all is controlled by arbitration.  This is an unusual circumstance.  The Longs had triplets at Kaiser San Diego.  The father is a non-Kaiser Gynecologist.  Two of the triplets died and Kaiser refused to transfer the remaining baby out of Kaiser to a hospital with a higher level of care.  There was an emergency application to the California Department of Health Care who agreed with the transfer.  This was August 18.  Kaiser, as is their norm, did not act.  This necessitated the court action against Kaiser.  The judge ordered the move within 24 hours.  This was delayed a day because of a lack of beds.  When one came available the baby was transferred.  The parents have already sued Kaiser (arbitration) for med mal for the deaths of their other two children and the problems and care of their remaining child. As this will be decided by arbitration we may not find out the final decision in the case.      

Illinois Supreme Court

The Illinois Supreme Court has ruled that the med mal rules in several southern Illinois counties are legal.  This includes a mandatory face to face meeting between the claimants and defenders for possibly settling.  The mandatory mediation is by mutually chosen judges or attorneys.  The Court also agreed with the rules regarding restrictions on med mal cases that do not have certificates of merit.

Frigo v Silver Cross Hosp.
   Ill App Ct

 Frigo sued the physician and the hospital for med mal and negligent credentialing respectively.  The jury awarded over $7 million for the patient losing her foot.  The hospital appealed.  The court stated that negligent credentialing is a tort in Illinois and that the hospital improperly granted privileges against both its own regs and bylaws.  The judgment stands.     

Vaughn v John Harton Med Ctr
Tenn App Ct

The Court reversed a summary judgment verdict for the hospital.  The hospital's expert failed to negated the causation component of the claim.  Davis was admitted to the hospital for pneumonia.  She fell broke her femur, was operated upon and died.  The kin have sued. The plaintiff used a nurse to substantiate their claim of substandard care by the nurses.  The hospital used a physician to attempt to negate the nursing claim.  Not good enough and so there is an issue of triable fact.     Top


US v Zimmer, etal

Four companies, Zimmer, DuPuy, Biomet, and Smith and Nephew have agreed to pay the government $310 million for using consulting agreements to entice orthopedic surgeons to use their products.  Stryker had settled earlier.        Top

Ambulatory Surgical Clinics

Capen v Shewry
Ca Ct App

In a case that determined who regulates the physician owned ambulatory surgical centers in California, the court ruled that it is covered by the Medical Board of California and not the Department of Health Services.  The court rule that the provision by the DHS was void since it did not follow the Administrative Procedure Act.  The DHS attempted to make Dr. Capen get a license and he sued. The Court finally mad the decision that clinics owned by physicians were under the Medical Board and those owned by others were under the DHS.


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.