September 15, 2008 Recent Legal News

Medical Malpractice




Peer Review





Medical Malpractice

Bush v Parkus

Mr. Bush was arrested for armed robbery and had a partial bullet in his forehead just below the skin allegedly from the robbery.  The authorities asked for and received a search warrant for the bullet and Dr. Parkus took the bullet out of the teen without the patient's consent but under the warrant.  Bush is now suing for battery.  There is some basis for the suit since the US Supreme Court in the 1985 Winston v Lee case refused Virginia to do an invasive surgery for a bullet.  They stated in that case that the courts must evaluate surgical intrusions on a case by case basis using a balancing test.  

Becker v Mayo Clinic
Possible 3rd Trial

The Beckers sued Mayo Clinic for failure to diagnose child abuse for their adopted child.  The natural father had abused the child and the child was seen at three weeks of age with a broken arm.  At six weeks she was seen with head trauma.  The Beckers sued at in the first trial found the physicians negligent but not the proximate cause of the damage so awarded no money.  The state Supreme Court ordered a new trial allowing new evidence to be admitted.  That trial ended a month ago with a defense verdict.  The attorney is now asking for a motion for a new trial.  

Doe v Doe
To Be Filed

 In Miriam Hospital in Providence, Rhode Island, the ultimate screw up occurred.  The wrong knee was operated upon despite the following of all protocols.  It sounds like they go through the motions and not truly pay attention to what they do.  The correct surgery was then done. 

Salandy v Bryk
NY App Ct

The Appellate Court overturned the lower court summary judgment for the defendant hospital.  The patient, a Jehovah's Witness, signed a paper offered by a resident part of which agreed to blood transfusions.  The patient also signed a separate form stating no transfusions.  The private surgeon did not see the two forms and was not told about the discrepancy by the resident.  She had received an auto transfusion which is not allowed in this religion. The court stated that there were triable issues of fact to be decided.

Columbia Med v Hogue
Texas Supreme Ct.

 Hogue was seen in the ED of the hospital, admitted to the ICU and continued to deteriorate.  A cardiologist then saw the patient and ordered an echocardiogram now.  The hospital had a contract with an outside firm to do echocardiograms but with no time elements in the contract.  The echo was not done for three hours after being ordered.  The technician recognized a severe mitral valve problem and the patient was transferred to another hospital for surgery but died prior to the procedure.  The jury found the hospital grossly negligent and the damages were over $10 million.  The judge reduced this to $5 million.  The high court agreed that the hospital was grossly negligent for not telling their staff about the contract and giving alternatives for treatment for the type of patient like Mr. Hogue.  The standard of care for a stat echocardiogram is 30 minutes.  

Schiegal v Kaiser
ED Cal

 The Kaiser transplant fiasco will not die.  Schiegal had an individual policy with Kaiser and later changed to a group policy.  He also had renal failure and required a transplant.  In 2003, Kaiser did not do transplants and Mr. Schiegal was sent to UC Davis to be put on the transplant list.  Later Kaiser started its ill fated transplant program and told the plaintiff he had to have his transplant at Kaiser.  They lied to the patient and didn't transfer him to the Kaiser program for over one year.  By 2006 the program rightfully closed and Schiegal was transferred back to UC Davis.  He sued in state court.  Kaiser removed the case to federal court under ERISA and then moved for summary judgment and dismissal.  The court refused and said that the case may be when Schiegal was under individual contract and most of the issues were medical decisions and therefore not under ERISA.      

Patients v St. Peter's Univ Hosp
To Be Filed

St. Peter's University Hospital in New Jersey has had 8 confirmed cases of Legionnaire Disease with two deaths. The hospital has notified 2000 people of possible exposure and believe it may have been due to a drop in the chlorine level in their water.     Top 


Illinois v Carle Clinic
Superior Ct.

The judge ruled that the Carle Clinic and Christie Clinic, both of Champaign County can be sued by the state for antitrust because the two clinics set identical policies to turn away Medicaid patients in order to force the State to pay higher prices.  The state, however, was precluded from collecting damages from the clinics since there is no statutory ability to collect the fines.  Illinois needs to look to California where hospitals and insurers are fined all the time. 

US v Humana

 Humana has agreed to pay the feds $750,000 to settle charges that their agents were not properly certified and licensed to sell the insurance.      Top


Providers v California

The State lawmakers enacted a law to reduce the monies paid providers by 10%.  This was signed by the governor.  The law was immediately challenged and the court ruled originally that the 10% cut was not to take effect due to the state's lack of consideration of what this would do to access for the population.  The court now reversed itself and said the state would only have to repay the withheld 10% payment after August 18, the date of the original decision.  All the monies prior to that date could be 10% less.  

Anthem Blue Cross wants to settle the money owed the California hospitals due to the illegal rescissions.  They have agreed to pay $11.8 million to all 400 hospitals they shortchanged.  The largest hospital chains have opted out of the settlement.  Anthem is going ahead anyway with the full amount to those remaining but will need to pay alot more to those opting out.  Those that have dropped out may collect from patients who then may sue Anthem to get their money back. 

Patients v California
9th Circ

 The 9th Circuit has ruled that Medicaid beneficiaries have a right to challenge payment cuts to providers.  This goes to the 10% payment cuts made by the Governor to providers which will make it much harder for providers to continue seeing these patients.  The State will appeal the decision.      Top


Lawnwood Med Ctr v Med Staff
Fla Supreme Ct

It's over.  The idiots at the hospital tried to usurp the medical staff recommendations.  The courts rejected the hospital attempt in a law passed for only this one private hospital.  The law was against the Florida Constitution (and common sense).    

Illinois v Provena

Provena Health has lost its appeal to the Illinois Court of Appeal that it should be stripped of its non profit status.  The hospital will appeal to the Illinois Supreme Court.  

US v Staten Island Univ. Hosp.

The hospital has agreed to pay $89 million to the government due to fraud in overbilling for care performed.  This came from two whistleblowers, a former physician at the hospital and a widow of a cancer patient.  The hospital hid 12 beds from state inspectors.  It also used knowingly wrong codes to get payment for treatments that should not have been paid.  In 1999, the hospital entered another agreement with the state to return $76 million for overbilling the Medicaid program.  The hospital also paid $880,000 to the widow separately for lying in advertising about the success of stereotactic body radiosurgery.  Seems like a poorly run hospital.  

Patients v John Muir Health

John Muir Health of Walnut Creek and Concord, California, has agreed to settle a lawsuit against them for overcharging uninsured patients.  The system has agreed that uninsured patients would only pay the same as insured patients would pay and would make their policies known to all patients.  They will reduce the bills of the patients that still owe the system money and will return money to those that paid.      Top

Peer Review

Guisti v Akron General
Ohio Ct App

The plaintiff's son died and following the death there was a conversation between the treating physician and the head of the ED.  In discovery, the questions regarding the conversation were objected to as part of peer review since the ED Chief was part of the standing peer review committee.  The court said that the conversation was not protected since there is no evidence that the conversation was initiated by a peer review committee and that there is no evidence there was ever a peer review of the death.

Anderson v Rush-Copley Med Ctr
Ill Ct App

In a decision that cries to be appealed, the Illinois Coat of Appeal overturned a lower court who stated that medical journals gathered prior to a quality meeting regarding the death of the plaintiff's wife were not protected.  The higher court said not only were they protected but even the final product of the quality committee were protected.  This was attempted to be distinguished from Illinois law.    

Nasim v Los Robles Med Ctr
CA Ct App

The physician, a nephrologist, was not board certified when he joined the staff.  After he joined the staff and had his privileges the hospital put in a rule that all physicians must be board certified within two consecutive board exam periods to be on the staff.  Dr. Nasim could not comply with the rule and was removed from the staff.  He appealed and the writ of mandamus was granted.  The hospital could not retroactively put this into place.  The hospital also did not apply the rule universally. 

Stralienko v Erlanger Hosp

The physician had a physician altercation with another physician over an accusation of qualification to serve on a committee.  The hospital suspended the privileges of the physician for 30 days.  The physician sued and asked for a TRO until the suit was over.  A permanent injunction was given.  The hospital asked for a summary judgment and this was denied stating that a reasonable jury could find the hospital did not act reasonably and that HCQIA protection did not attach.  The suspension gave no notice , no hearing , no investigation and of course was a complete sham.  The hospital could go through a full peer review hearing but could not suspend the physician until it had complied. 

Smith v Selma Hosp
Ca Ct App

In a review article about the above case that showed that a hospital can not terminate a medical staff membership based solely on another hospital's peer review action if there is some question about the reliability of that peer review. The article states that hospitals should do their own investigations and peer review of the physician.  The underlying case is one of economic credentialing by Adventist that owns all the hospitals involved.  There was no evidence of any quality issues at one hospital but the MEC took on its face the wrongful peer review at the other Adventist hospital.  This hospital has a past history of doing economic credentialing and paying large sums of money for legal fees to help destroy physicians standing in its way.  These are usually good hospitals for physicians to stay away from.      Top


Little Rock Cardio v Baptist 
ED Ark

In a case that has been going on for years, a court has finally made a ruling.  In 1997, the cardiologists opened a heart hospital and were removed from a network that used Baptist.  In 2003, Baptist put in an economic credentialing policy.  This was overturned by a court in 2004.  In 2006 this antitrust claim was filed against Baptist and it was amended in 2007 to include the insurer Arkansas Blue Cross.  In a summary judgment motion the court decided that the plaintiff physicians did not beat the statute of limitation, did not adequately define the geographic limits.  The court stated that the addition of the insurer was more than the four years statute but the hospital's 2003 economic policy allowed the case to go forward against Baptist under the statute but not because of the geographic limitations.          Top


Magyar v St. Joseph 
7th Circ

The District Court granted a hospital a summary judgment on a retaliation claim.  This was reversed by the 7th Circuit.  The claimant told about sexual harassment and then was retaliated against by the hospital, a true no no.  This should settle soon.    

EEOC v Catholic Healthcare West
CD Cal

CHW had an illegal policy that stated pregnant women could not work as technicians in their cardiac catheterization labs.  Two techs were transferred out of the lab upon notifying the hospital they were pregnant.  They filed charges against the Northridge Hospital to the EEOC.  CHW refused to sign a consent decree and stop doing the illegal act.  EEOC sued and won.  The hospital will pay the EEOC $155,000 and they will distribute the money to the two claimants.  Normally I would fault the hospital CEO for stupidity but when the action is by the owner the stupidity transfers to them.

Kuhn v LaPorte
ND Ind.

 The CEO of the institution was informed of an investigation and asked to see the medical records requested.  She found numerous fraudulent changes to the records and the billings.  She sought outside counsel and reported the fraud to the appropriate US Attorney's office.  She then told the Board who immediately terminated her, a very dumb thing to do.  She sued for retaliation for legitimate whistleblowing.  The hospital went for summary judgment and of course lost.  I smell a large settlement coming.      Top


Columbia v Gregory

Columbia is a deaf individual who uses ASL for communication.  Gregory is a podiatrist who saw Columbia for a heel spur without an ASL interpreter present.  A second appointment was made so an ASL interpreter could be present.  Gregory scheduled the surgery but sent a letter stating that no further interpreters would be present post op unless there was a complication.  A law suit ensued and Gregory took the patient back and did an uncomplicated surgery while the suit was pending.  The court refused a summary judgment at this time even though the law states that it applies only to those with 15 or more employees.  The judge did state the notice by HHS was garbled and a proper summary judgment motion may make the case go away.        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.