October 15, 2006 Recent Legal News





Medical Malpractice

Peer Review



California v Physicians

Charges have been filed against some resident physicians at the notorious Drew/King hospital in LA.  I have already reported on the tax evasion charge for the radiologist who claimed he worked 20 hours a day seven days a week.  Now one emergency medicine resident is up on DUI and another on stealing a hand from a cadaver while a medical student in New Jersey.  Still another resident has been accused of working prior to being licensed.  This was a direct error of the hospital.  

US v Rogan
Judicial Decision

In Chicago, a federal judge ordered the ex-owner of Edgewater Hospital to pay $64.2 million to settle all illegal claims and kickback charges.  Peter Rogan was accused and now convicted of conspiracy with physicians to falsify Medicaid billings.  The judge ruled that the owner acted with deliberate indifference and reckless disregard of the truth or falsity of the claims.  The actual amount of false claims was $16.9 million but the government could get treble damages. 

Texas v Jackson

Vickie Dawn Jackson an RN at Nocona General Hospital pled guilty of killing about 10 patients with lethal injections.  She will be sentenced to life in prison.  No motive was ever forthcoming.   

US v Hurwitz

Dr. Hurwitz the prominent pain specialist who was convicted by the over zealous government and then had their verdict overturned has convinced a federal judge that Dr. Hurwitz is a flight risk since a prior jury had convicted him.  During his first trial he was allowed out on bail.  This is another harassing of the physician who has caused the government a black eye in their mishandling of painkillers.      Top


Patients v US
US Supreme Ct.

The US Supreme Court refused to hear a case brought by physician and patient groups against the administration for what the groups believe is too lax medical privacy.  The Supreme Court decision left the HIPAA rules intact.        Top


US v Brylowski, MD

A grand jury has indicted the physician, a Dallas psychiatrist, of filing false claims to Medicare.  He claimed he did sessions with patients and didn't.  He faces a $2.7 million fine and five years in the pokey.  

The above paragraph was printed on May 1,2003. I do not remove prior postings but I do report case conclusions.  I have been recently notified and am happy to report that Dr. Brylowski had all charges against him dismissed.  He never pled to any counts of fraud nor was he ever indicted for any crime relating to this three year old posting.

US v Itil

The US has filed a civil suit against Dr. Turin Itil for filing false claims on it's elderly patients.  Some of the claims were for tests for Alzheimer's disease where there were no symptoms.  Dr. Itil was the head of World Health Organization's Committee on Alzheimer's Disease. 

Tyson v Amerigroup

Tyson, the former head of governmental relations for Amerigroup Illinois, a Medicaid HMO and now whistleblower, is the chief witness against the HMO.  The trial just started and the HMO is accused of not signing up pregnant women.  The government has intervened and is attempting to get millions of dollars returned.  The HMO took in $243 million from 2000 to 2004 but paid out only $131 million.  That's a good business to be in.         Top 


NLRB Decision on Nurses

The National Labor Relations Board (NLRB) has stated what all knew, nurses may be supervisors and ineligible for unionization.  The vote was 3-2.  It should be noted that after the Clinton presidency when the Board was 3-4 Democratic the Board is now 3-2 Republican.  The Board states that if nurses give assignments to other workers on a regular and substantial portion of their work time, about 10%- 15%,  they will be considered supervisors and ineligible to be unionized. This includes all regular charge nurses.  If a nurse only works occasionally as a charge nurse he or she may be deemed a supervisor according to  the opinion.  The militant California Nurses Association has threatened to strike any hospital that complies with the legal ruling.  One wonders why unions are losing ground and clout in all non very blue states.       

Sloan v South Carolina Board of Physician Therapy
SC. Supreme Ct.

The South Carolina Board of Physical Therapy made a ruling that therapists could not be employees of physicians and if they were the therapists could be disciplined.  This ruling was challenged but it was upheld in the lower and in the state Supreme Court. 

Conney v Regents of University of California
Ca Dist Ct.

Dr. Conney sued the University of California for not promoting her stating she was discriminated against.  The jury awarded her $2.9 million in economic injury plus $515,450 in attorney fees.  The appeals court blasted the University for its processes being discriminatory and upheld the award.  This shows the University is just as stupid as the private hospitals in their processes.

      Olean Med. Grp. v Leckband
NY App. Div.

A physician group sued a physician for breaking a restrictive covenant after leaving the group. The group got an injunction against the physician and the physician appealed.  The Appellate Court agreed with the injunction and refused the physician the right to be employed by the hospital.  Top

Medical Malpractice

In re Amendment to The Rules Regulating The Florida Bar
Florida Supreme Court

In a ruling that defies rational thought, the Florida Supreme Court stated that med mal plaintiffs may decide to waive their constitutional rights for how much they pay their attorney based on contingency and recovery.  However, there is a mandatory judicial approval of any contingency fee that is more that the stated caps on attorney fees.  How many plaintiffs will not say they want the caps waived if they have already been emotionally invested in the case with an attorney and he won't go ahead unless the attorney fee caps are waived?  The correct answer is none.    

Zambino v U. of Penn. Hosp.

The patient sued after receiving a blood transfusion with Hepatitis B.  He sued the physicians, blood bank and hospital.  The plaintiff won on all counts with the court stating that when a patient is constrained in his or her choice of medical care options by the entity sued, the entity controls the patient's health and may be liable for corporate negligence.  To trial.

Pope v Winter Park Healthcare Grp.
Fla. App. Ct.

The family of a brain injured neonate sued the neonatologist for failure to do multiple things and also sued the hospital for the acts of the independent practitioner neonatologist.  The plaintiff claimed the hospital had an non-delegable duty to treat their son appropriately.  Also they stated the consent forms formed an express contract between the patient and the entity.  The trial court ruled for the hospital in summary judgment.  The appellate court overruled and said that the state has no non-delegable duty but does have a duty under an express contract.  They found that the consent form was such a contract.  The plaintiff may proceed with the case against the hospital.   Top

Peer Review

Vesom v Atchison Hosp.
D Kansas

Dr. Pitt Vesom was denied reappointment to the medical staff by the MEC and later by the Board.  The reason was "disruptive conduct".  Dr. Vesom sued on antitrust and discriminatory grounds.  The hospital asked for and received summary judgment on all counts.  Since Dr. Vesom was an independent contractor he had to prove that he was of a protected class and that the hospital intended to discriminate based on race and that discrimination caused an injury to his making a livelihood.  The Court stated that the hospital bylaws were not an enforceable contract since the bylaws stated that medical staff privileges are not a right and there was no right to continued staff privileges. Without a contract Dr. Vesom could not prove any injury for discrimination.  Under antitrust he lost since the Board acted unilaterally and not in concert with the MEC.  No conspiracy= no antitrust action.  The court also addressed the waiver of the right to sue as presented in the reapplication.  They acknowledged that is was probably valid since it was unambiguous and the plaintiff had time to review the waiver.  It did not take into account the repercussions that he would not be allowed on staff if he did not sign.  

Fullerton v Florida Med. Assn.
Fla. App. Ct.

The physician had testified against three other physicians in a med mal case.  The physicians complained about the testimony to the FMA.  The physician sued the FMA and the physicians on RICO and defamation respectively.  The defendants defended on HCQIA.  The lower court agreed with the defendants.  The court of appeals overturned stating that there is nothing in HCQIA or the state peer review statute that would shield the defendants from liability.  There was no quality of care issues involved with testimony in a med mal case.

Wahi v Charleston Med Ctr.
SD W. Va.

The physician was suspended by the hospital for performance issues and then reported the physician to the NPDB.  The physician sued stating he never received a hearing.  The hospital defended stating it had offered a hearing and HCQIA held.  The court agreed with the hospital. 

D'Arrigo v South Jersey Hosp.
NJ Superior Ct.

The physician, an OB/GYN was suspended from the hospital and sued for a group boycott and an unlawful monopoly under state law.  The court agreed with the hospital and physicians on the antitrust claims stating that the medical employees could not conspire with the hospital.  They could conspire among themselves but the court stated they found no evidence of this.  The court went on to discuss the monopolization and found that the plaintiff physician had a genuine issue of fact on this issue and should be given his day in court.

Mahmud v Kaufman

The plaintiff physician was denied renewal of her medical staff privileges and she sued the physicians for antitrust and other usual causes of action.  The defendant moved to dismiss and the plaintiff moved to amend.  The court stated the plaintiff could amend and that she just made the threshold for satisfying the standard for antitrust and allowed that portion of the case to on to court.   Top


UnitedHealth v Physicians
US Supreme Court

In two separate actions the US Supreme Court denied UnitedHealth's claim that the physicians that sued them for antitrust violations must arbitrate their claims.  The lower stated courts, including the Supreme Courts of Indiana and Kentucky, all agreed that antitrust was outside the contemplated arbitration clauses of the contract between the physicians and the insurer.  All claims in both states now go to trial. 

Tenet v Abravesh
Cal. Dist.

This is an anti-kickback case.  Dr. Abravesh is an OB/GYN recruited by Tenet for their Alvarado Hospital.  The agreement was that Tenet would pay the OB group that she joined the monies that were paid to it for her.  If she left the area she would need to repay the hospital.  She was terminated from the group and could not find a new job in the service area.  She moved and Tenet sued to get their money back.  She defended by stating the agreement was illegal because the hospital had previously been indicted for violation of the anti-kickback rule.  That did not fly as past misdeeds had no bearing on this case and she has to pay back the $86,500 Tenet paid to the group in her behalf.   

Reddy v Puma 

The plaintiff physician sued the defendant physicians for antitrust violations stating they conspired to keep him out of interventional cardiology in the area. The defendant physicians moved to dismiss the case for lack of a valid claim.  The court stated that the plaintiff had pled enough to overcome the motion and the defendants needed to answer the complaint.  I doubt if this will go to trial.  The potential for major payments are too great for the defendant physicians.

Gordon v Lewistown Hosp.
MD Pa.

The physician sued the hospital for antitrust and the court found in favor of the hospital.  The hospital then sued the physician for attorney fees.  The court ruled for the physician as there was no malice and the plaintiff believed he could succeed.        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.