September 15, 2009 Recent Legal News


Peer Review

Health Care




Watson v Superior Ct
Ca Ct App

The physician challenged the state regulation that allowed the Medical Board of California to punish one for unprofessional conduct when the conduct did not interfere with patient care.  The physician was never convicted of DUI but was on four occasions accused of drinking alcohol while driving.  The Board suspended the physician for 30 days and put him on probation for five years.  The court stated that there needed only to be a logical connection between the offense and the practice of medicine and drinking while driving was that nexus.  A conviction is not necessary.        Top

Peer Review

Benson v St. Joseph
5th Circ

Benson's attorney screwed up.  Benson, a Texas physician, sued the hospital under the Texas Medical Practice Act which requires clear and convincing evidence for a summary judgment overturn.  The attorney did not preserve this for review so the matter was not litigated in the 5th Circuit.  The hospital won the summary judgment.  The physician tried to state that there was malice in the hospital's decision.  The courts stated that Benson did not present clear and convincing evidence of malice.  Just because several members of the JRC were his competitors was not enough to show malice.

Isaiah v WMHS Hosp.
4th Circ

Dr. Isaiah, Maryland physician,  had his privileges revoked and lost in the lower court a summary judgment decision. The physician's attorney challenged the federal HCQIA action and forgot to challenge the state immunity provisions.  The 4th Circuit stated that they will not consider the case since the state provisions were not challenged and therefore were waived. 

Gomez v Georgetown Hospital
Superior Ct.

Dr. Gomez has filed suit against the hospital for rejecting his staff application.  He was actively recruited for the staff of the hospital by Georgetown physicians since he is a specialist in pain management in the terminally ill.  The hospital rejected his application and filed a report to the NPDB.  The hospital is being sued for $1.25 million for defamation and breach of contract.  Dr. Gomez had a known past problem with substance abuse when he was recruited.  The DC Medical Society had been monitoring Dr. Gomez and supported his application.  The hospital and Dr. Gomez had a settlement agreement that agreed to treat Gomez's file as confidential and state that he was refused credentials due to the length of time he was away from clinical medicine.  Georgetown then reported Gomez to the NPDB because of diversion of controlled narcotics.  Gomez had never been disciplined in DC or any state for substance abuse.   

Lowrey v Fairfield Med. Ctr.
Ohio Ct. App

It boggles the mind how some physicians or their attorneys think.  Dr. Lowrey had his privileges taken away but signed a contract with the hospital that he could reapply.  He did and of course was turned down.  He asked for a hearing as was his right and then dropped his request in order to sue.  The courts all said as have all other courts that the physician must lose since he did not complete his administrative remedies.        

Small v Schauermann
Ca Ct App

Dr. Small, an OB, retired from medicine and therefore resigned from St. Bernadine Medical Center.  The following year he decided to return to medicine at a different hospital and applied for privileges.  St. Bernadine sent a letter to the other hospital which was written by their attorney, Susan van Hall stating they could not recommend Dr. Small for appointment for a variety of reasons.  Dr. Small then applied for privileges at another hospital but St. Bernadine would not send a letter unless Dr. Small signed a new release specific for the new hospital.  Dr. Small refused.  He then sued St. Bernadine, van Hall and the Department Chief for libel, and their refusal to respond to the last hospital constituted interference with and unfair business practices.  The hospital defended by filing a California Anti SLAPP suit under Kibler and the court agreed the letter was protected as peer review.  They did not rule on this because the libel was filed too late for the statute of limitations.  The court allowed the other claims to go forward as "there is a substantial likelihood that he would prevail on the merits of the case." It is always interesting to see an attorney sued as well as the hospital.        

Jenkins v Methodist Hosp.
DC Texas

Dr. Jenkins had his privileges removed at the hospital and after exhausting administrative remedies he filed suit and lost.  The hospital then filed suit against the physician for attorney fees and won at the appellate level.  After failed mediation the matter was back in court and the court stated that under HCQIA fees may be awarded when the statute's standards of immunity were met, the hospital prevailed and the claim or conduct was frivolous, unreasonable without foundation or in bad faith.  This court only looked at the third prong.  They ruled that only 1/3 of the claims were frivolous and so only awarded the hospital only 1/3 of it's reduced amount asked for.  The hospital got $112,000 and spent how much to get it?     

Galle v Winkler County Hosp. 
Filed Fed Court

In a case that boggles the mind, Nurses Galle and Mitchell told the hospital about the care they felt a physician was providing was not up to standard.  The hospital did nothing and the nurses reported the physician to the Texas Medical Association.  The Association told the physician and he filed a criminal complaint against the nurses for harassment.  The sheriff filed a criminal complaint against the nurses and they were indicted for misuse of official information. The hospital fired the nurses. The pretrial motions against the nurses continue and the nurses are suing for illegal retaliation plus civil rights and due process violations. The Texas Medical Board has stated the information sent them was legit.  The Texas Nurses are raising money for the case.         Top

Health Care

Migrants v Hawaii

Hawaii was sued for a temporary injunction to stop the removal of dialysis and chemotherapy care from migrant workers.  The new law was supposed to save $15 million for the cash starved state.  The injunction was allowed because the State may have violated the due process rights under the Constitution.  The policy was announced one month prior to taking effect and without any public hearings.  Another hearing will be held to make the injunction permanent.  

California v Buckberg

UCLA turned over information regarding potential conflicts in a charity LB Research owned by Dr. Gerald Buckberg and five officers of the charity to the California AG.  The AG accused the people of using the charity for their own purposes and to benefit themselves.  

Patient-Physician Alliance v ValleyCare
Alameda Superior Ct. Cal.

The organization sued the hospital for hiring physicians against the California law and not providing the required community benefit.  The organization went to court to stop the hospital's operations.  The court threw out the suit.  Duh! It sounds like this organization better have alot of money if they want to go on this course of action.  Usually the only winner in these are the attorneys. 

Physicians v Independence Blues 

A Pennsylvania mediator has ruled that Independence Blue Cross and Blue Shield may not go back more than 18 months earlier when attempting to get money back from physicians.  This is against the class action pact that the Blues signed several years ago in Florida federal court.  How the Blues will repay those dumb physicians who already repaid the Blues and when the Blues will send out new notices have yet to be decided. 

Bankruptcy of Downey Hospital

Downey Hospital in Los Angeles has filed for bankruptcy.  It is a private, not for profit, hospital with 199 beds.  The hospital has lost $100 million in the last few years due to unfavorable HMO contracts.  The hospital will come out of bankruptcy in about a year with a new business model that will accept no HMO business and only certain PPO business.  During the bankruptcy all services will remain open.  This is the second LA hospital to file for bankruptcy and the other, Brotman Hospital, has emerged and is now profitable.   Top


Doe v Williston Med Ctr
To Be Filed

The North Dakota hospital sent a mother home with the wrong baby.  The error was rectified soon but how soon is soon enough.

Patients v UC Irvine

Multiple patients sued the University for screwing up in their fertility clinic twelve years ago.  The University has paid out $24 million in claims including this last round for over $4 million.  The physicians have left the country and left the University holding the bag.  The physicians Ricardo Asch and Jose Balmaceda took eggs that belonged to one couple and give them to another.  The investigation that followed showed a University cover-up.        Top


Torres v Ryder Memorial Hosp
1st Circ

I wonder when plaintiff attorneys will ever read the law prior to filing suit.  In this non case the patient was seen in the ED for chest pains and bleeding from a femoral dialysis site.  He was admitted and given transfusions.  Attempts at stopping the bleeding were unsuccessful and transfer was being arranged.  He died prior to the transfer.  The family sued under EMTALA in federal court for lack of stabilization.  The court correctly ruled that this only applied if the patient was discharged from the ED or transferred. The court like all the rest before this ruled that EMTALA is not a federal med mal statute.        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.