April 1, 2010 Recent Legal News







Peer Review


US v Orthopedic Inst. of Penn.

The government sued the Orthopedic Institute doe to lack of interpreters.  A deaf patient was refused an interpreter when he called to schedule an appointment to discuss a procedure.  This is a direct violation of Section 504 of the Rehabilitation Act of 1973.  The medical group must train their staff, insure effective communications and report their progress to the feds.        Top


Nehme v Anthem Blue Cross
Trial Ct.

In the aspect of how dumb can you be, Anthem continues to surprise.  First they have the massive premium raise which plays into the hands of Obama and now they go to trial on a losing case.  Nehme had deteriorating liver function and needed a transplant.  He was on the waiting list at UCLA, a contracted provider.  UCLA told him to go to Indiana for the transplant as he could get it quicker and he may die if he waits for UCLA.  Anthem refused to pay for the transplant out of network.  Nehme went anyway and paid $206,000 for the procedure.  He them sued the insurer.  Now, no jury will ever go for an insurer over a patient in a case like this and this one was no exception.  The vote was 10-2 that the insurer breached its contract and 9-3 that it acted with malice.  Not only did the insurer lose the case for the $206,000 but they also have to pay the legal fees which will be more than the transplant.  Anthem did not take into account the person they were dealing with.  The plaintiff had been offered more money in a settlement but wanted the trial and is willing to donate all the money won to liver research.  He wanted people to go out of state for transplants.  Anthem should look for new advisors and attorneys.        Top


Giliemmo v Cousineau
Georgia Supreme Ct.

The Georgia Supreme Court continues to approve of a 2005 law that makes suing physicians more difficult.  This particular law requires gross negligence in order to win against an emergency room physician.  The physician examined the patient but did not order a CT scan and she is now paralyzed due to a ruptured brain aneurysm.  This was a 4-3 decision.  Prior the court ruled that it was legal to have the plaintiff pay the other sides legal fees if they turn down settlement offers and lose in court or only win a portion of a settlement offer.  They will next hear a case regarding the $350,000 cap for non economic damages. 

Nestlehutt v Cole
Georgia Supreme Court

They heard the case and decided that any cap on damages is illegal.  This was a unanimous decision.  The court ruled that caps are against the Georgia Constitution.  

Klotz v Shapiro
Missouri Supreme Court

The Missouri Supreme Court ruled the non economic caps of $350,000 is not retroactive and those that had injuries prior to 2005.  Several of the justices wanted the law repealed in its entirety but this action was not decided.

Maher v Hillcrest Convalescent

Maher was a patient at Jeanes Hospital in Philadelphia.  He was discharged to Hillcrest where he remained for several weeks before returning to Jeanes.  He was "misdiagnosed" at Jeanes originally and then developed bedsores at Hillcrest.  These became worse and he was transferred back to Jeanes for all of three days when he was discharged home.  He then died of his bedsores.  The jury in the original trial gave compensatory damages of $1 million. In the second trial on punis, a rare condition requiring outrageous and reckless conduct, the jury gave Maher $1.5 million against Jeanes and $3.5 million against Hillcrest.  

Moreno v Quintana
Tex App

In a med mal suit against a PA and a hospital for negligent credentialing, the court ruled the same rules that apply for physicians do not apply for physician extenders.  In Texas a negligent credentialing suit is not allowed to go forward against a physician.  The same is not true for physician extenders.    

Plumlee v Garber

 Plumlee was under general anesthesia for a breast reconstruction when the surgical drapes caught on fire.  The plaintiff believes the physician used alcohol to clean the skin and then used an electrocautery device.  She was burned on her face and is suing the surgeon.      Top


US v Castro-Ramirez

A Detroit jury has found Dr. Jose Castro-Ramirez guilty of Medicare fraud.  The doctor bilked Medicare out of $18 million with fictitious occupational visits.  He got Medicare numbers in exchange for prescriptions.  Sentencing comes later.  This shows how poor the government is in monitoring potential fraud to let this continue to this level.   

US v Robt. Wood Johnson Hosp.

Robert Wood Johnson Hospital in Hamilton, New Jersey, has agreed to pay a fine of $6.35 million for Medicare fraud.  The fraud was in obtaining more money from Medicare for outlier payments.  This was another whistleblower suit.   

US v Scarbrough

Todd Scarbrough, the director of a Melbourne, Florida's Cancer Center, agreed to pay $12 million for billing for services not performed, done without supervision, or billed without proper documentation.  Also in the settlement was Internal Medicine Associates MIMA Cancer Center that did radiation therapy.   

US v Renal Care Group
D Tenn

This case started many years ago and the government entered the case two years ago.  The case centered on the amount billed to Medicare for home dialysis supplies.  The judge ruled that Renal Care did not take the advise of its own lawyers and billed incorrectly.  The judge ruled the company must repay Medicare $19.3 Million.  

Texas v Clardy

Dr. Christina Clardy of Houston is involved in two fraud cases.  The Texas state case charged her two weeks ago of illegal distribution of pain meds.  The new fed case is for billing Medicare and Medicaid for procedures not necessary or not performed.  This is part of a prior physical therapy fraud case against Umawa Oke Imo.  She was a supervising physician at the center Imo owned.  An arson fire in a clinic was investigated and many pre-signed prescription pads by Claardy were found.        

US v Nwafor 

Leonard Nwafor, an owner of a DME, was sentenced to nine years in prison for health care fraud.  However, he wasn't there to hear the sentence.  He had previously fled the country.         Top


Doe v Blue Cross/Shield

Jane Doe has sued the insurer for accidentally but illegally publishing her personal medical information in a handbook sent to 97,000 members.  The insurer stated the woman was a patient at a surgical center in a small town in Minnesota.  It described where she was treated, the claim information, her identification number and the costs of her care.  They will probably be hit with a $50,000 fine by the state plus whatever they will pay to the woman.   

Patients v Griffin Hospital
To Be Filed

A radiologist who was fired from the hospital's contracted medical group hacked the patient data base for the records of 957 patients.  He then proceeded to contact them to have them see him at his new hospital.   Not a good job by the hospital to secure the PACS images and information and stupidity on the part of the physician.        Top


Illinois v Provena
Illinois Supreme Ct.

The long running case against Provena Health in Illinois is finally at an end.  The Supreme Court agreed with the Appellate Court that Provena should be stripped of its non profit status.  They did not provide enough charity care to qualify.        Top

Peer Review

Badri v Huron Hospital
ND Ohio

Dr. Badri was terminated from the staff of the hospital and sued under the usual culprits and the ADA and the Rehabilitation Act.  The hospital won summary judgment as expected but the court pointed out that there must be discriminatory actions by the hospital prior to the termination.  The physician has problems proving this due to confidentiality in the process leading up to the final termination.  Also, the court again stresses that an investigation does not have to be perfect.  A mistaken report given credibility is OK.         

Ind Ct App

In another blow to the physician, the court stated that HCQIA does not mean a hospital must conduct its own investigation but can rely on another hospitals findings without verification of the facts at that hospital.

Smith v Adventist Health
Ca Ct App

Adventist, known for its hard stand against physicians finally lost a case.  Dr. Smith had won an injunction against the hospital for taking away his privileges due to the fact he had terminated from another hospital.  The injunction allowed him to practice for one year and then re-apply for privileges.  He did and was rejected since the three year waiting time to re-apply at the original hospital had not run.  He again sued for an injunction.  The court ruled as did the lower court that the bylaws were a contract and in fact the three year time had run by the time it got to the appellate court.  Since the physician would probably win a permanent injunction the present injunction will also stand. 

Shin v U. of Maryland
4th Circ

Shin was an intern and has ADD.  He was doing poorly in his internship and requested "reasonable accommodations".  The hospital developed an individual action plan and referred him to the Employee Assistance Program.  He did not improve and requested many things but basically he could not do the right things in an efficient manner.  The real question in this case is how did a medical school take and keep him when it should have been obvious that he could never practice medicine.  

Daigle v Stuic
D Me

 Daigle was a receptionist in a Maine hospital.  She stated she was sexually harassed by a physician at the hospital.  She sued the physician's main hospital in Kentucky for not reporting him to the NPDB.  This was easily tossed out of court since there is no private right of action to sue under HCQIA.        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.