October 15, 2013 Recent Legal News


Peer Review and Employment




US v Tuomey 

The South Carolina District Court for the Columbia Division has ruled against Tuomey on all counts.  The hospital paid above fair market value for physician gastroenterologists to do their procedures at the hospital or the hospital's outpatient facility.  The original trial found that Tuomey was guilty of Stark violation but not of FCA violations.  This was overruled by the 4th Circuit and sent back for a new trial on FCA violations.  Tuomey was found guilty and in post trial motions asked for a new trial and the feds asked for treble damages.  The judge ruled that the original damages of $39 million continued to hold and that treble damages under the FCA were appropriate therefore the total owed by Tuomey was $276 million.  Tuomey has asked for an appeal and a hold on the money.  It should be noted that this case started as a qui tam by one physician.

US v Citizens Medical Center
SC Texas

Three cardiologists filed a qui tam case against the hospital stating there was an illegal kickback to the ED physicians for admitting cardiology cases.  The hospital filed a motion to dismiss but it was denied.  I imagine that this case will eventually be settled especially after the Tuomey fiasco.        Top

Peer Review and Employment

Russo v New York Presbyterian Hospital

Russo, a female perfusionist, was terminated for leaving the OR prior to the end of a case.  Her defense was that over the years she had been subjected to harassment by a surgeon and could not take anymore.  She did file an earlier claim against the surgeon with the hospital but it was for general and not sexual harassment.  She stated that she raised the sexual harassment issue verbally with the CEO.  The court ruled that the surgeon did not do sexual harassment as he was an equal opportunity ass.  He harassed both sexes.  If the sex harassment could not stand then neither could Russo's claim of wrongful termination.  Summary judgment for the hospital.

Foster v Jennie Stuart Med Ctr.
KY Ct App

In a great study of how not to terminate people and poor lawyering, the hospital terminated two nurses for thinking it was them who sent an anonymous email to the state nursing board that the hospital was doing unsafe care.  The nurses were not told about a hearing and their access to the computerized employee manual were terminated.  They get a trial on the wrongful termination.

Lipka v Advantage Health Grp
D Kansas

In another inept hospital lawyering, the ALC facility fired the head nurse four days after she told her employers that they needed to get a federal waiver for doing finger stick blood tests and that she had turned in a former employer for the same thing.  Duh.  Summary Judgment denied.

Graham v Memorial Health Univ Med Ctr

A white OR nurse stated she was berated by the black OR charge nurse causing a hostile work envionment.  She complained to the hospital and was soon terminated after first getting assigned to a lower paying job at the hospital.  The court denied her claims of harassment and being transferred to a lesser job due to racial bias.  Her retaliatory discharge claim was allowed to go to trial.

Ali v Calumet Med Ctr
ED Wisc

In another example of poor lawyering the hospital gave the Pakistani national a smaller loan forgiveness package and signing bonus.  He was also required to work more than the white physicians and when he complained he was fired.  He sued and won the right to trial on all allegations except his claim of invasion of privacy.

Moelleken v Jones
Ca Ct App

In a fascinating case that one almost never sees, an orthopod sued because the hospital denied his ability to be on the trauma panel as a spine surgeon.  The spine trauma was monopolized by the neurosurgeons and they not so quietly threatened to re-assess their contract for ED back-up if they had to share call with a spine orthopod.  This case at Cottage Hospital in Santa Barbara is rare since it is always handled in-house.  The jury found for the neurosurgeons and the hospital and the court of appeals upheld the verdict.  The hospital had the medical staff get a task force look at the issue and they after hearing the ortho and neuro sides decided not not form a separate spinal call panel made up of both specialties.        Top  


Troha v Suntay
Ohio Ct App

Dr. Troha went to Dr. Suntay for a CT scan of the abdomen for abdominal pain.  The scan was read as negative for obstruction but with edema of the terminal ileum.  Several days later Dr. Troha was operated for an intestinal obstruction.  One and 1/2 years later he reviewed the scan and sued for malpractice for not mentioning the possibility of Crohn's Disease.  He lost since the statute of limitations is one year from when he should have known, which was the time of surgery.

Gluck v Greenwald
Pa Commonwealth Ct.

In a strange malpractice case, Dr. Gluck was sued for medical malpractice on the urging of the attorney on the state medical board, Greenwald.  He used his inside knowledge of peer review records and the physician's financial condition to help the family suing the physician.  The lower court found for summary judgment for the attorney but this was overturned since what he did was outside of his official capacity.

Harper v Hippensteel
Ind Ct App

 In a case good for physicians, the family of a person treated by a NP with a practice agreement with a physician sued the physician for malpractice.  The physician never saw or did an affirmative act toward the patient.  It was all the NP.  The court agreed and said no case against the physician as he had no duty to the deceased person.        Top


Hartford Insurance v Corcino & Assoc.
CD Cal

 Hartford sued Corcino for declaratory relief in order to not defend or pay for the Stanford University gaffe of placing the information of 20,000 patients on line for one year.  Hartford claimed initially that they did not have to pay since the contract stated that coverage was not available for law infractions.  The suit was filed as a a breakage of CMIA.  However, the court found another clause that said that they would be liable for damages under common law.  Since California has a long judicial record of patient privacy this would hold.        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.