October 15, 2015 Recent Legal News




Peer Review and Employment





Jarrell v Kaul
New Jersey Supreme Court

Jarrell was a patient of anesthesiologist Kaul.  Kaul did back surgery at outpatient centers with no training.  Jarrell was injured, sued and won $750,000.  He appealed asking for more since Kaul was not insured at the time of the injury.  The Supreme Court said patients are not allowed to sue because their physician does not have malpractice insurance.  The law allows either insurance or "letters of credit" and it is up to the Medical Board to enforce.  The physician do not have to tell their patients if they have med mal insurance or not.  The facility has a duty to check the proper credentials of the person using their facilities.  This allowed the plaintiffs to return to court to sue the outpatient facility who screwed up big time.

Cornell v Tam
Nevada Supreme Court

The Nevada Supreme Court overruled the trial judge in all aspects.  They said the caps on med mal are legal, they do not deny a right to a trial by a jury, they relate to the case not the individual defendant, and it applied to med mal not professional negligence.  The trial in the case still needs to be held as Tam asked the Supreme Court to overrule the trial judge preliminary rulings.

Skelcy v Beighe
3rd Circuit

Plaintiff has dermatomyositis and interstitial lung disease.  He was treated with Rituximab and responded well.  His symptoms recurred and he was to be treated again with the same med.  UnitedHealth, his insurer said no and referred tha matter to an Arizona rheumatalogist who said this was not the standard of care but IVIG would be the standard.  United refused both the med and the IVIG and the patient died prior to United reversing itself.  The courts stated the physician in Arizona owed no duty of care to the New Jersey patient who she had never seen nor treated.

Patients v TotalWellness
To Be Filed

A nurse contracted by TotalWellness, a New Jersey Healthcare agency, gave flu vaccine at a clinic to employees of Otsuka Pharmaceuticals but used the same syringes.  All know to use one cannula and one needle per patient.  

Cotter v St. Francis Hospital

The family of the patient sued after he was admitted to the hospital for attempted suicide.  Under law the hospital can hold involuntarily a person for 15 day if they pose a threat to themselves or others.  The hospital kept him for five days and he committed suicide the following day.  The family was awarded $2.3 million.

Sheehan v Stamford Hospital
D Connecticut

Sheehan was transported to the ED of the hospital for being heavily intoxicated.  She was seen in the ED and appeared normal and discharged.  No BA was done.  She was then readmitted to the ED immediately for a possible stroke after stumbling and walking with an unsteady gait. She died from the stroke.  The estate sued for an EMTALA violation and since the ED did not do the BA an EMTALA claim was allowed.

West v Huxol

West went to the ED at Breckenridge Memorial Hospital with respiratory distress.  The ED physician requested a transfer to a higher order care facility, Owensboro Medical Health but the physician there Dr. Huxol decided that the Louisville University Hospital would be more appropriate.  The ER physician could not get through to to Louisville and recontacted Owensboro where another physician accepted the transfer.  West never regained consciousness and died.  The court rejected the EMTALA claim against Huxol and Owensboro since there is no private cause of action for EMTALA against individuals and  Owensboro did not actually refuse the transfer.  He only advised that Louisville would be a better location for the patient. There was no med mal claim since there was no relationship.

Rice v Boston Scientific
Delaware Trial Ct.

The jury originally found Boston guilty of med mal in a vaginal mesh case.  They awarded the plaintiff $100 million.  The judge reduced the amount to $10 million but denied Boston a new trial.  Boston Scientific will appeal that decision.

Lakoskey v Anesthesiology PC

The patient went to North Memorial in Robbinsdale, Minnesota, with flu like symptoms with dehydration.  He was found to have an injury and his IV fluids were discontinued an hour prior to surgery.  During surgery his BP dropped and he had a spinal cord injury.  He was awarded $9.1 million.

Hinton v Baptist Hospital of Southeast Texas

Latisha Hinton delivered her 14 week fetus in a bathroom in the hospital ED.  She showed the fetus to Dr. King who put it in a container.  She was then discharged from the ED and told to see an OB.  Before she could get to the OB she had vaginal bleeding and went to another Ed.  There she was diagnosed with either a hematoma or retained products of conception.  She had a hysterectomy at the second hospital.  She is suing Dr. King and Baptist for not doing a good vaginal exam and not performing adequate testing after her original spontaneous delivery.   

Howard v CRC
Georgia Ct App

Howard sued medical providers for med mal in the care of her daughter.  During Discovery it was found that she had received mental health care in the past.  She was asked to provide a HIPAA authorization to obtain those records and she declined.  The trial court fond the records to be privileges but the court of appeals said some may be relevant and instructed the trial court to do an in camera review to determine which should be let into evidence.

Tam v The Eighty Judicial District
Nevada Supreme Court

 Dr. Tam was a defendant in a med mal case.  He filed a motion to say the plaintiff non economic damages be capped at $350,000 per the state law.  The lower court denied the claim and he appealed.  The high court said the cap is constitutional and that it did not violate equal protection since it was rationally related to governmental interest.  The court also said the statute saying professional negligence encompassed med mal.     

Southern Baptist of Florida v Charles
Fla. Dist. Ct.

The court quashed the discovery order of a lower court compelling the production of a hospital's occurrence reports.  This court has gone against most other courts in the country which allow the occurrence reports to be discovered.  The court says the reports are not made in the ordinary course of business. 

Patients v WellSpan York Hospital
To Be Filed

 At least 8 patients have died at the York, Pennsylvania, hospital.  They developed non-tuberculous mycobacteria infections after using heater-cooler devices.   This is a known infection but is new with the use of the device.   The hospital admits not following the cleaning process to the letter. The device is used with heart surgery.        Top


US v Millennium Health

The lab agreed to pay $256 million to settle claims that it gave gifts to physicians to order tests and that it misrepresented the need for procedures.  They also declared bankruptcy and told its lenders to take over the business.

US v Evercare
D Colorado

The court found that the hospice submitted false claims to the feds for people who should not have been in hospice.  The hospice pushed their employees to certify people who they should not have certified and gave them bonuses for each patient admitted.  Stupid hospice.

US v Ramirez

Dr. Alfred Ramirez, a psychiatrist, and his co-conspirator James Cooney were arrested and charged with a massive distribution of illegal Oxycontin.  The doctor would write the scripts and Cooney would fill them and distribute the pills.

US v Toumey Healthcare

The dumbos at Toumey finally settled their case with the feds for violating the False Claims Act.  The feds came after Toumey ten years ago and they refused to settle.  They went to court several times and lost at all levels.  The final verdict was that Toumey would have to pay $337 million.  They could not pay this and finally now settled for payment of $72.4 million and the sale of the hospital to Palmetto.  This may serve as a deterrent to other hospitals wanting to litigate against the feds.  Think of the cost in legal fees, time and publicity this hospital put out.

US v Guardian Hospice 

The hospice agreed to pay in a whistle blower suit $3 million to resolve allegation that it admitted and billed for patients who were not terminally ill.

US v Wilson

Dr. Wayne Wilson of Hickory, North Carolina, has pled guilty of health care fraud.  He added non existent services to his billings.  He lied about doing office visits.  Why?  He rightfully thought he wasn't being paid enough for his Medicaid patients.

US v Pon

Ophthalmologist Dr. David Ming Pon of Leesburg, Florida, was found guilty of doing unnecessary surgery on patients.   This netted him a cool $7 million he didn't deserve.  He is to be sentenced in March.

Van Raalte v Healogics

Three whistle blowers sued Healogics, an operator of wound care facilities in multiple states, of health care fraud.  The wound care operator was in cahoots with the hospitals also named in the complaint according to the plaintiffs.  The plaintiffs state a superbill was placed into each patient chart and at the end of the visit the nurse or physician would check off what procedures were apparently done.  The procedure was also true for the physician fees.  The wound center would also have from the hospital a budget showing how much money they would make per month.  They would make sure they hit their target by doing necessary procedures if necessary.    In a separate but similar law suit other whistleblowers sued Healogics for illegal hyperbaric treatments.    

US v Luthra

 Dr. Rita Luthra of Springfield, Mass., was indicted for lying to federal agents and wrongful disclosure of PMI.  She was allegedly paid $23,000 by Warner Chilcott to promote their drugs as well as being paid $750 for eating lunch and listening to the company spiel.  She let company representatives access to her files.  The first question is how did the feds know about this minor infraction.  Secondly, why are they going after her?  Is it to send a message to others to fess up?   

US v Orthopaedic Associates of Reading,Ltd.

The group agreed that the combing of 19 of 25 orthopedists into one group reduced competition in Berks County, Pennsylvania.  Orthopaedic and Keystone combined in 2011.  Last year Keystone broke away again.  The order preserves the separation an requires the two groups to obtain prior approval before acquiring any interest in each other , before acquiring another Berks County practice or before hiring any ortho who has provided services in the county for the past year.  

US v Wisniewski

Dr. Peter Wisniewski of  Huntington, Maryland, was sentenced to three years in the slammer for illegally writing prescriptions for Adderall and Oxy which he then kept for his own use.  He had previously given up his license and was not fined $40,000. 

Jacobs v Pocatello Women's Health Clinic

Dr. Jeffery Jacobs, whistleblower, sued his former employer for falsely certifying compliance with the Stark and AKS laws.  He claimed that the clinic illegally shifted overhead costs to the hospital in exchange for making referrals to the hospital.  The clinic and hospital attempted to get the suit dropped but the court allowed the suit to continue.        

US v Warner Chilcott

 Warner Chilcott agreed to pay $125 million for settlement of the claim that it illegally marketed drugs.  The ex-president, W. Carl Reichel has also been arrested and charged with conspiring to pay kickbacks to physicians.    

Scates v Shenandoah Memorial Hospital

The ultrasound tech says she complained about false billing and was terminated for her troubles.  The court said that for the case to continue she would have to allege sufficient facts that conversations between her and the hospital were in furtherance of the FCA.  The court said this did not occur and discharged the complaint.        

Patients v Anthem Blue Cross

The insurer agreed to pay $8.3 million to thousands of members in California for breach of contract.  They increased annual deductibles and out of pocket limits as well as prescription deductible in mid contract.  The average insured will get a whopping $167.  One insured will get $19,000 and the attorneys will get $1.76 million.

US v Hospitals

The feds have settled with 457 hospitals in 47 states over implanting cardiac pacemakers not in accordance with archaic Medicare rules.  The whistleblowers will get $38 million out this fiasco so far.        Top


Mann v Trinity Hospital

Mann has a brain cancer and is pregnant.  Her physician recommended an abortion and the hospital where she had her two children refused as it is a Catholic hospital.  The ACLU got into the act and is suing the hospital for a violation of the EMTALA.  This case does not entail a person going to the ED.  It entails an elective procedure and as such should be dismissed.  The patient found a different physician and a different hospital.

Students v New York Schools System
US Supreme Court

The high court decided not to take the case and let stand the appellate verdict of two students who sued the system for mandatory vaccine to go to school.  The trial judge stated the rule does not violate the students right of religious freedom since he found out that the mother objected not really on religious grounds but on health reasons.

San Francisco v Nevada

Nevada has agreed to pay San Francisco $400,000 for allegations that it bussed mental illness patients to the City and did not pay for their care.

US v Floyd Medical Center

The hospital agreed to pay $75,000 to patients who are deaf or hard of hearing and agreed to comply with the ADA in providing staff training.

Goldenberg v New York
NY Trial Ct.

Three patients wanted to commit physician assisted suicide and wanted their physicians off the hook if they helped them.  They sued but were denied since New York has a statute not allowing assisted suicide.  This statute has been upheld by the US Supreme Court.  This will be appealed.  

Marin Alliance for Medical Marijuana v US
Fed Ct  N.Ca

In a major win for marijuana the court blasted the Department of justice for their interpretation of the Rohrabacher-Farr amendment.  The passers of the bill believed it prohibited the DEA from going after dispensaries that were following state law.  The DEA believed the amendment only affected states and not individual dispensaries.  The judge made it clear they were wrong.  This may be the end of the feds interfering with a state's passing medical or recreational marijuana laws. 

United Healthcare v Paracha
NY Trial Ct.

The court dismissed a suit by the insurer against a Long Island physician organization.  The sued for fraud, tortious interference with contract and conspiracy.  They had paid the physicians for services provided for medical emergencies but said the fees were too much.  The court said the patients were not in a position because of the emergency nature to negotiate fees but the fees of the FAIR Health Standards were not legally binding on the physicians when the charges were submitted.  The law did not address retroactive payments.  The physicians were at that time at liberty to set their own fees and United should pay.  Top

Peer Review and Employment

Ralph v St. Anthony's Med. Ctr.
Mo. Ct App

In one of the stupidest case I have seen filed none the less appealed, the surgeon sued the hospital that terminated his privileges for tortious interference with contract.  The contract was the outpatient facility he wants to work at requires hospital privileges for appointment and he now has none.  The court rightly threw this out since the physician had no ability to sue the hospital for his relationship with the outpatient facility.

Hessein v American Board of Anesthesiology
3rd Circuit

Dr. Hessein had his license in two states temporarily suspended for an indictment for health insurance fraud.  The Board then revoked his Boards.  He sued under lack of due process and anti trust.  He lost in the trial court on summary judgment since the Board is a private and not public association and the physician is not seeking to end the anti competitive behavior of the Board but actually join it.  The 3rd Circuit agreed with the trial court.

Shannon v Testen
NC Ct App

The plaintiff ophthalmologist sued a social worker after he was suspended from a hospital and referred to a psychologist and a state sponsored peer review agency.  The social worker wrote that the physician should receive further professional evaluation.  He sued and as usual lost.  The writers of the letters were not acting in bad faith and there is no private cause of action. 

Shervin v Partner's Healthcare
1st Circ

A female physician was put on probation in the 4th year of her residency due to patient care issues.  She sued stating the probation and other acts of retaliatory and discriminatory acts adversely affected her ability to get a job.  This was sex discrimination sayth the female.  The jury said it was not discrimination and she missed the statute of limitations. The appellate court agreed saying she blew the statute by believing the start was when the consequences of the discrimination were found, not the real origin of when the acts occurred.  

Doe v Rogers

A surgeon sued the NPDB Secretary of HHS for releasing an inaccurate report by the surgeon's hospital.  The litigations started from an emergency lap appy where he inadvertently removed the 14 year olds Fallopian tube.  The surgeon then voluntarily relinquished his privileges and resigned.  Two months later the hospital sent a letter to the NPDB saying he resigned under investigation.  He tried to get the report stricken but was unsuccessful prior to the suit.  The court agreed with the NPDB that there was adequate evidence that an investigation was present at the time of the resignation.  The surgeon said that the hospital did not open a formal investigation as stated in the bylaws.  The court said there is nothing that required a hospital to follow its bylaws.          Top


Perez v Doctors Hospital of Renaissance
5th Circuit

Perez's family is hearing impaired.  The daughter was diagnosed with a brain tumor that required monthly treatments.  They sued since they say the hospital did not provide them with an interpreter and the video remote imaging machine did not work properly.  The trial court ruled in summary judgment for the hospital and the 5th reversed.  The Circuit court ruled that there was enough evidence to create a genuine issue of fact and this may continue in the future.

Myers v California Tax Board

Dr. Michael Myers filed a writ of mandamus against the Board wanting to have it collect eight years of insurance taxes from Kaiser Health Plan.  He says all insurance companies are required to pay a tax on gross premiums but Kaiser has not by calling itself a non profit which it is not.  Kaiser believes it is a health service plan and HMO and not an insurer.  Myers claims that if it is quacks like a duck it is a duck.        Top


Patients v Excellus

A class action law suit has been filed against Excellus Health Plan for negligence after 10 million client information was compromised.  The breach happened in December 2013 and was not discovered for 20 months.  They then did not disclose the hack for an additional month and have never said which clients ere affected.

Patients v CarePlus Health Plan
To Be Filed

The Florida company screwed up.  They sent two member statements per envelope one of which was another patients.  They did this to 1400 people.

Patients v Univ. of Oklahoma
To Be Filed

The University has notified patients of a pediatric urologist had a laptop stole tat had patient information.  The info was password protected but not encrypted.  The University notified the patients since the urologist and his current employer have not yet notified anyone.

Valley Children's Hospital v Moua

The hospital has sued two pediatric pulmonologists who left the hospital and used unauthorized access to patient records to lure patients to their new facility.  The hospital says that the physicians damaged their reputation and breached their contract along with the usual stuff.  Not really HIPAA but no where else to put it.        Top


Texas v Sheikh

Dr. Shafeeq Sheikh, an internal medicine resident in 2013 at Baylor Ben Taub Hospital, has been accused of sexually assaulting a patient confined to a bed in the hospital three times.  She states she called for help and the next day the call button was found to be disconnected.  He was the only one matching the description given by the woman and his DNA matched the sample taken after the assault.   

Hickox v Christe

Kaci Hickox, the nurse that would not be quarantined for Ebola, has filed a suit against New Jersey officials for violation of federal civil rights.  She got the ACLU to file so it will not cost her anything.  Too Bad.  I would like to see her go under on this.     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.