April 1, 2009 Recent Legal News



Peer Review







Jacobs v Hamot Med Ctr

The parents of a teenager in Ohio with a head injury are suing the hospital for harvesting the organs before their son was dead.  The hospital states they did it by the book and the parents refute that.  The father wants no one to ever sign to allow harvesting since he signed and has a huge amount of guilt.   

Slavin v Mt. Sinai
Jury Verdict

Slavin had back surgery for a disc by Dr. Mario Nunes and then a second surgery to fix a leak.  The surgeon used a dye to find the leak but was unaware of the packaging that stated the dye was not indicated for this surgery.  The packaging had been discarded.  The patient developed arachnitis.  The surgeon was also fined $10,000 by the state medical board for practicing below the standard of care.  This is the maximum fine. Dr. Nunes had no med mal insurance as it is not required in Florida.  Mt. Sinai hospital had settled the case prior to trial for about $7 million and the physician with no insurance is it for $31 million.  He will go bankrupt and the patient will not get any money.  He did this in 2001.

Hicks v Beth Israel Deaconess

The physician who was operating on the patient fell asleep during the surgery.  The nurses did not act to prevent the physician from operating although they knew he had a problem with alcohol and drugs in general and specifically that day.  The patient sued and settled with the hospital and physicians.  The Republic of Massachusetts has come after the hospital for its fault in the incident. The physician has been suspended by the hospital and the state has temporarily suspended his license.   

Brown v Good Samaritan
Palm Beach Jury

A jury in Palm Beach, Florida, has decided that Good Samaritan waited too long to deliver a baby eleven years ago.  This, they say, caused brain damage and awarded $4 million to the plaintiff.  The delay was in securing an operating room.  The physician had previously settled.         Top


Kansas v Tiller

The trial of Dr. Tiller, one of the few who do late abortions has started.  The state is after him for 19 misdemeanors each one has a year in jail.  They claim he did not get an independent physician second opinion as required by the state law.  The physician he did get for the second opinion the state says had a financial association with Dr. Tiller.   Dr. Tiller was acquitted in 30 minutes of deliberation.  Immediately afterward the medical board announced a similar complaint which should be dismissed even faster.

Georgia v Egbert

Dr. Lawrence Egbert and three others in Georgia have been arrested by Georgia for assisted suicide, tampering with evidence and racketeering.  They were accused of helping with the helium induced suicide of a Georgia person.  The four are involved with an organization that helps assisted suicide, which is legal in Oregon, Washington and Montana.    Top

Peer Review

Wefaid v Johnston Hosp

Dr. Wefaid of North Carolina is suing his hospital for removing him from the staff.  He accuses the hospital of profit before quality and institutional politics.  The hospital states he was removed for allowing a nurse to sign his name to a medical order that could endanger patients and cost the hospital money.  The physician has won a temporary injunction and the hospital has appealed.  The physician was fired from his practice a year ago and took half the practice with him.  His former partner is a past chief of the hospital and still has political connections at the hospital.  The former partner has prodded the staff to report all minor infractions done by Dr. Wefaid.  The signatures were done on five charts by a nurse on patients already discharged and with the doctor several feet away.  The nurse states no patient care was affected.  This was common practice at the hospital.  Since he filed suit the hospital has offered to reinstate him on probation but the physician wants a hearing. 

Abcarian v McDonald
ND Ill

Dr. Abcarian was the chief of surgery at the University of Illinois in Chicago.  He had complained multiple times against the hospital's treatment of physicians.  He had a patient die post-op and the case was settled secretly by the hospital without the knowledge or consent of Dr. Abcarian.  This generated a report to the Data Bank.  Dr. Abcarian attempted to sue the hospital for their deceit but was unsuccessful due to the hospital being a state agent and immune to suit.  I have known Dr. Abcarian for 40 years and believe him without reservation.

Moore v Williamsburg Hosp
4th Circ

Dr. Moore and his wife were accused by their child of both molesting the child.  The child was removed from their home and eventually they gave up all claim on the child.  When the accusation became public, Dr. Moore, a surgeon, was summarily suspended as a danger to other children.  He went through peer review and the suspension held up.  He claimed that the accusation was outside of the medicine and therefore should not be used against him in the hospital.  The court did not agree.  Later the DSS decided not to press charges so the child would not have the trauma of testimony.  Dr. Moore attempted to get the hospital to back down from its prior stance since there were no criminal charges.  This did not work.  

Zwiacher v Cmty. Health 
Wis Ct App

Dr. Zwiacher was placed on probation due to several surgical problems.  He also was on the MEC and complained about another physician directly to the MEC without going through the proper channels.  He complained that two members of the peer review committee were economic competitors and should not have been allowed.  The court did not agree with the physician since he did not have proof that the physicians were biased against him.  

Thomas v Ashley Med Ctr

Dr. Richard Thomas, an OB/GYN at the Utah hospital lost his privileges.  He is now suing the hospital for falsifying medical records to get rid of him.  He also accuses the CEO of releasing confidential peer review information to the medical staff.         Top


US v San Mateo County

San Mateo County in northern California has agreed to pay $6.8 million for its hospital inflating its bed census.  There was a penalty attached to the fine.  This was a whistleblower case and the person got $1 million.  

US v Victory Hospital

The Brooklyn, New York, hospital agreed to pay $2.3 million for falsifying cost ratios.  Another whistleblower suit.

US v Cornerstone Hospital 

The Huntington, West Virginia, hospital agreed to pay $690,000 to stop the investigation into the fraud of the prior hospital owners for billing duplicates, equipment with no medical necessity.  This is another whistleblower suit.        

US v Hernandez

The fraud in South Florida is fantastic.  This was a husband and wife team that attempted to defraud Medicare and got caught.  They got sentenced to ten and five year sentences and lost their house valued at $443,000.  The judge also ordered restitution of over $7 million.  Lots of luck.   

US v Healthways

In a whistleblower suit, Healthways has agreed to pay the feds $40 million for illegal physician payments for referrals.  They deny the charges but paid the huge amount anyway.  

US v Miller Med Group

The Miller Medical Group of Los Vegas is being sued by the feds for fraud due to their doing unnecessary lab tests.  The group ordered LDL and HDL tests instead of total cholesterol and HDL and then using a formula finding the LDL.  The feds state 15,000 illegal tests were done and want the money back plus treble damages.  Three of the physicians of the group have already settled with the feds.  

US v Mid Atlantic Cardiovascular

An investigation of St. Joseph Med Center in Maryland led to an investigation into the Cardiovascular group.  The two entities have been after each others throats for many years.  There have been stealing of surgeons between hospitals and threats of "destroying" rival physicians.  The entire story is worthy of Wall Street's greed.

US v Methodist Hospital

Houston, Texas Methodist Hospital has agreed to pay the feds $10 million for the allegation that they defrauded the feds by increasing charges with no increase in costs in outlier care.  The hospital denies the accusation but paid the $10 million to get on with business.      Top


San Francisco Restaurant v SF
US Supreme Ct

The city of San Francisco has unilaterally decided to have business provide health insurance or pay into a fund.  The restaurant association thinks this is illegal.  They have sued and lost in trial court and at the three person 9th Circuit.  They were denied in a split vote an en banc hearing.  They are no appealing to the US Supreme Court for an injunction until the case can be heard. The Supremes would not accept the case as an emergency.  The case will now go in a routine expensive fashion.

Watanabe v CPS
Ca Ct App

The appellate court stated that HMOs can not be held responsible for the actions of their physician groups, including whether something is medically necessary.  The medical groups are liable for their own decisions but the damages are limited under state law.  The trial attorneys are not happy with this and will try to get their paid Democratic legislature friends to "clarify the issue."  

Schoedinger v UnitedHealth
8th Circ

  The physician sued the insurer for sending erroneous information in the EOB.  The court stated that the physician failed to prove the falsehood of the information.  He also alleged wrongful payments.  He proved the wrongful payments or non-payments and the court awarded him $28,000 in principal on the ERISA claims, $5000 on the non-ERISA claims and $284,000 in pre judgment interest, costs and attorney fees.  He lost the RICO allegation.  He also lost on an injunction on future claims.    Top


Payne v Texas State Board
Tex App Ct

Dr. Payne was accused of performing unnecessary surgery on a patient.  The ALJ ruled the punishment was correct by the Board.  The lower and the court of appeal both agreed and stated that they could not second guess the ALJ.  

Aptaker v NY Board
NY App

The medical board had suspended the physician's license for six years due to lying on multiple applications.  The Administrative Review Board rejected the medical board and permanently revoked her license.  The courts agreed that the penalty was not shocking to the conscience and should not be overturned. 

Physicians v Wellpoint

The AMA and several state medical associations have filed suit against Wellpoint for their immoral and illegal use of Ingenex to pay low rates for out of network care. United has already settled and suits have been filed in the past against Aetna and Cigna.  The owner of the database, United, has shut it down.  The physicians want the back pay owed above the low rates paid. 

Physicians v Blue Shield
D Fla

Federal judge Moreno dismissed the class action suit by multiple physicians and state medical societies against Blue Shield for systematically paying too little to physicians.  Many other insurers settled early and agreed to change the way they handle claims as well as pay money to physicians.  There was not enough evidence here to satisfy a conspiracy between insurers.       Top


Azzouz v Prime Peds
Ga App Ct

Dr. Azzouz had a contract with the Prime Peds group that contained a non-compete clause.  While still employed at Prime, he formed a new corporation within the prohibited area.  Prime sued for an injunction and won and Azzouz appealed.  the court upheld the contract since it was unambiguous and not overly broad.  Actually the contract stated that Azzouz could not work in a hospital either within or not within the prohibited area if the hospital advertised within the prohibited area.  Sounds overbroad to me.   

Carey v Maricopa County
D Ariz

Dr. Carey was removed from leadership positions within the hospital after he spoke up at county board meeting against the board's abortion position.  This was retaliation and allowed the defeat of a summary judgment motion.     Top


Thompson v Sparks
Ark Ct App

Mrs. Thompson came to the ED of a hospital with a degloving injury to her leg from a motorcycle accident.  The hospital had no plastic surgeon on call and called a plastic surgeon from another hospital for a transfer.  The physician had his privileges taken away at the original hospital and would not accept the patient.  Another plastic surgeon eventually came and took care of the patient.  The patient sued the physician and the secondary hospital.  The case was dismissed since she never presented to the second hospital and the hospital owed her no duty of care.  The physicians were all non suited.

Ritter v Lapeer Med Ctr
ED Mich

The plaintiff, Dr. Ritter, is an OB at the hospital.  He was not reappointed due to "too many instrument deliveries."  The physician showed a probable connection between his non reappointment and his refusal to transfer an unstable patient.  This allowed all charges against the CEO and the others sued to stand against a summary judgment motion.  The CEO summarily suspended the physician while an outside investigation was still ongoing and the Board did not take into consideration the same conduct complained about by the outside reviewer in regard to a another OB on the staff.  This according to the court negated HCQIA protection.  The court did grant HCQIA immunity for the hospital defendants based on the post hearing decision to continue the suspension.  The court also give immunity to several OBs who wrote letters for the peer review process but allowed the defamation to stand for the NPDB report of the initial suspension. While he was allowed to sue for damages, the damages would be contained only to the original suspension and not the permanent suspension that occurred a year later.  How much money does an OB make a year?

Kaufman v Franz

The patient came to the ED with chest pains and was evaluated for anxiety.  No cardiac eval was done.  The patient died of heart disease the next day.  The estate sued on EMTALA and the court dismissed the case against the physicians since EMTALA does not allow suit against physicians.  The court allowed the suit to go forward against the hospital since there was no proper screening.       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.