April 1, 2011 Recent Legal News





Employment & Peer Review



Minnesota v Melchert-Dinkel

William Melchert-Dinkel was found guilty of aiding suicides by a judge.  One of the people hanged himself and the other one jumped into a frozen river.  He was obsessed with hanging and found victims on the internet.  He would then give step by step instructions on how to hang oneself.  The defense claimed that the victims were predisposed to suicide.  the judge ruled that was not a valid defense.  The maximum penalty is 15 years and a $30,000 fine.  

Patient v St. Joseph Hospital

A female patient has accused a worker at St. Joseph Hospital in Orange County, California, of sexual assault.  This allegedly occurred while she was a patient in the ED.    

American Board of Internal Med v Von Muller
ED Penn

Although not a true criminal case, it is close enough.  Dr. Von Muller had her board certification removed and lost her hospital privileges for allegedly illegally copying board questions and selling them.  She sued and lost her due process claim since the Board is not a state actor.  She won at summary judgment the right to allow the rest of her claims to go to court. 

Illinois v Alden
To Be Filed 

Illinois has attempted but do date has not been successful in closing Alden Village North Nursing Home due to substandard care.  A quality care organization has just finished a review of the Home and has found potential problems with five deaths.  They have sent their report to the state.  Top


People v Health Net
To Be filed

It is hard to believe that so many people continue to extol the virtues of electronic records when they can be compromised in great volumes.  An example is the latest fiasco by Health Net of California.  They lost information of almost two million people at one time.  The loss included personal information including social security numbers.  This is the second major problem for the organization.  Several years ago they compromised 1.5 million people in the Northeast.  They lost a server.  How does one lose an entire server.  A breach usually costs any company about $240 per individual affected.  That is without the fines.        Top


US v Spiegel

Dr. Jerry Spiegel of Boynton Beach, Florida, was sentenced to 3.5 years in prison, ordered to repay $881,000 in restitution and lost his medical license for his part in a medical fraud.  Dr. Spiegel is 78 years old.  He was the medical director of three HIV clinics that were prescribing unnecessary meds or the meds were not given to the patients.  

US v Kiely

The feds have filed charges against Dr. John Keily of Baltimore, an ophthalmologist, for performing unnecessary procedures on dozens of patients in a Bon Secours Hospital outpatient clinic.  The procedures were laser and in some cases dozens of times on the same patient.  He practices at Mercy Medical Center and they were not aware of the suit by the government.  The government is seeking triple damages plus $11,000 per false claim.  The procedure in question is for the treatment of glaucoma and is call ALT.  Another treatment he did a lot was LAO for cataract complications.   

US v Dweek

Fred Dweek, MD, has been sentenced to federal prison for two years for his role in the south Florida home health scams.  He wrote phony prescriptions and phony attestations as well as illegally funneling patients to the scam clinics.

Aetna v Physicians

Although I am not sure this falls under the Fraud heading, it is certainly close enough.  Aetna is suing physicians that treat the Aetna patients out of network and charge exorbitant fees.  A physician charged $30,000 for a C-Section and another charged almost $60,000 for a ultrasound exam that usually costs $74.  Aetna is suing for triple damages and I hope they win.  There must be reasonableness to reasonable and customary charges.      Top


Morales v Bayfront Medical center

Morales is suing the St. Petersburg, Florida, hospital for using a vacuum device on her son while she was delivering him.  He has cerebral palsy.  What fueled the case according to the plaintiff attorney was the physician approaching the family and talking about a settlement.  Of course there are other circumstances as the child was premature and one does not know what caused the problems, prematurity or the device.   

Patient v Hospital
To Be Filed

In a rare case where privacy is utmost importance a patient received HIV via a kidney transplant.  That has happened very rarely since the early 1980s when testing for HIV became routine.  In this case the donor had unprotected homosexual sex after being tested and got the virus.  The recipient was immuno-compromised.  The current guidelines do not state when testing should be done nor what test should be used.  The newer HIV tests can pick up cases in 10 days after being infected whereas the older tests will not become positive until 8-12 weeks after exposure.  The older tests are the most frequently done.   

Preston v Tenet

This class action suit against Tenet for the problems in the hospital during Katrina has been settled. 

Patients v Kaplan
To Be Filed

Dr. Kaplan, a urologist in Henderson, Nevada, has lost his license after it was found that he re-used prostate needle guides without sterilization.  His defense is that he was told that this was acceptable by the vendor. 

Leisz v Parker
NJ Trial Ct.

A woman sued her plastic surgeon after she was not able to shut her eyes post blepharoplasty.  The jury found Dr. Paul Parker deviated from the standard of care but ruled that he had advised her of the potential for the complication that occurred.  She won $115,000.  It should be noted that the patient had over 10 prior plastic surgical operations.

Williams v US

A Navy surgeon left surgical instrument in a woman after a hysterectomy.  Seventeen months later she had secondary surgery to remove the foreign object.  She is suing for millions against both the government and the forceps maker.  A small piece of a forceps made by Gyrus Forceps broke off during the surgery.  The Maryland woman continued to complain of abdominal pain and finally a CT scan showed the disposable plastic foreign body.  When removed it measured 3.5x0.4x0.3 cm with three plastic prongs.  The forceps has since been recalled.       Top

Employment & Peer Review

Cardiologists v Citizens Med Ctr
5th Circuit

The 5th Circuit upheld the economic restrictions imposed by the Victoria, Texas, hospital on the cardiologists.  The hospital closed the cardiology staff to correct "operational problems."  There was strife between the CV surgeon and the cardiologists.  The cardiologists lost. 

Comens v St. Charles Clinic
Mo Ct App

 Dr. Comens was employed by the Clinic for several years as a non invasive cardiologist who read tests not only at the hospital but at other places as well.  This was well known to the Clinic.  The Clinic was purchased by SSM Healthcare in 1994.  They specifically allowed by contract Dr. Comens to keep his outside income.  In 1999, they clinic decided to change the compensation which included a flat $50,000 overhead fee for noninvasive cardiologists along with a tiered percentage of all revenue.  This impacted this physician over all others and he was told that he was the reason for the change in compensation.  All the noninvasive cardiologists disagreed with the plan and complained both verbally and in writing.  Dr. Comens hired an attorney who opined that the clinic had breached the contract.  Dr. Comens continued to be employed by the clinic and continued to write his disagreements to the Board.  He filed a breach of contract suit in 2005 and was terminated.  The doctor won a jury verdict of $330,000 and then filed a claim for prejudgment interest.  The court denied the claim and an appeal followed.  The appellate court reversed the trial court and allowed the prejudgment interest of 9% for liquidated damages.  The court stated that the amount in dispute was ascertainable and therefore liquidated.      

Abcarian v McDonald
US Supreme Court

The high court denied to hear an appeal from the verdict in the 7th Circuit where Dr. Abcarian was the victim of the University of Illinois settling a med mal suit without the physician's knowledge or consent.  This was then reported to the state board and the NPDB.  The reporting was correct the settlement was unethical.  

Sternberg v Nanticoke Hosp
Delaware Supreme Ct.

The court upheld the suspension of Dr. Sternberg for disruptive conduct but denied the hospital their won attorney fees.  

Yapchai v Shinseki
ED Mich

In another case of alleged discrimination causing removal of a physician from the hospital, the hospital again won.  In this case at a VA hospital the physician was removed and then not re-hired due to incompetence.  He sued for discrimination and of course lost.

Chung-Ming Wong v DHS
D Nev

Dr. Steve Chung-Ming Wong, an anesthesiologist in Nevada was removed from a hospital medical staff after they determined a patient died due to his practicing under the standard of care.  He claims his "fair hearing" was lacking in due process due to documents presented by the hospital that were not made available to him in advance, no medical records were entered into evidence, he was not allowed to examine witnesses and he was not allowed to present scientific evidence supporting his position. He then sued against various defendants including HHS in state court.  HHS removed the case to federal court.  The court ruled for HHS as their was no federal subject matter jurisdiction and failure to state a claim which relief may be granted.  He tried to claim HCQIA was illegal and that the hospital was not allowed HCQIA protection due to lack of due process.  The court ruled for DHS and dismissed them from the suit.   

California Med Society b Blue Shield
Trial Ct

A judge had dismissed the suit against Blue Shield for their online physician rating system which is based on cost and not quality.  The insurer does not know quality, only costs.  The judge said it was protected free speech.     

Kaye v Van Putten
Ca Ct. App.

Dr. Kaye, an ophthalmologist, had the wrong eye of a patient anesthetized by the defendant Dr. Van Putten.  During the Root Cause Analysis session, Dr. Van Putten allegedly made racial remarks about Dr. Kaye's Hispanic patients.  Dr. Kaye objected at the time and no apology was forthcoming.  The incident was reported to the chief of staff and a letter was eventually sent that no action was to be taken.  Dr. Kaye then sued Dr. Van Putten and lost since the "slur" was during a protected peer review meeting and therefore not admissible in court. Also Dr. Kaye had no real standing to sue as the comments were toward another.  His attorney probably should have known that prior to filing suit.    

Martinucci v S. Cal Permanente
Ca Ct. app.

Dr. Martinucci was a radiologist at a Kaiser facility.  There was significant racial tension in the department and protocols were established.  The techs would not follow the protocols and did all they could to get Dr. Martinucci fired after he started writing them up for not following protocols.  He eventually was constructively discharged and sued.  He won in trial court about $3 million including punitive damages.  The judge overturned the jury on some matters and the case went to the court of appeals.  The appellate court agreed with the lower court's decision and there will be a new trial.     

Marshall v Meadows

Dr. Marshall claimed many federal discrimination torts and state claims against Dr. Marshall and his hospital.  Dr. Marshall went to trial per se.  In federal court he lost summary judgments on all federal counts but the judge allowed him to amend.  The federal court denied jurisdiction to the pendant state claims.  

Gitter v Cardiac and Thoracic Surgical
4th Circ.

Dr. Gitter applied for and was accepted as the chief of Cardiology at the hospital.  He resigned his current post and moved to take the new job.  There was no signed contract but all terms had been agreed to.  The hospital then decided that Dr. Gitter lied on his application when he stated he had never been disciplined.  In fact, Dr. Gitter was suspended for failing to find a replacement for his call when he went to interview at the hospital for the new position.  The suspension was rescinded nine days later and he was placed on probation.  Dr. Gitter did not consider this as discipline.  He won the summary judgment as there is a question as to whether he actually had a discipline and if he actually believed it.         Top


Los Angeles v Centinela Freeman Hosp.

Centinela Freeman Hospital in Inglewood, California, has agreed to pay $125,000 to settle patient dumping charges filed by Los Angeles.  This happened in 2007 where a women with a chronic lung condition was dumped at a temporary winter shelter.

EEOC v John Muir Health

John Muir Health in Contra Costa County, California, has settled a discrimination suit by the EEOC for withdrawing job offers to people with latex allergies.  They paid $340,000.  Also as part of the settlement John Muir must revise it's policy.

Overdyke v LSU

Dr. William Overdyke and Susan Hodnett, RN were both fired from their jobs at LSU Hospital in Shreveport, Louisiana, after they blew the whistle on the hospital for filing false claims.  The hospital paid the government $700,000 and now paid the physician $120,000 and the nurse $80,000.   Hospital attorneys are really dumb to allow this to happen.        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.