April 15, 2006 Recent Legal News

Elder Abuse





Fraud and Abuse


Peer Review





Elder Abuse

Dilley v Sutter

In the last issue I reported on this case of elder neglect by Sutter and the $1.4 million verdict by a jury against Sutter for the neglect.  The jury was still out on the punitive damage portion which may be up to nine times the compensatory damages.  There is no medical malpractice reforms on elder abuse.  The parties have agreed on a secret settlement.  The plaintiff's attorney was prepared to show five other cases of bedsores at Sutter facilities.  The other five died.          Top


Sweet v Sheehan
Fla. Dist. Ct.

Sweet was a patient of psychiatrist Sheehan and attempted suicide three times.  The first time he was involuntarily hospitalized.  The second time he was not hospitalized but was treated as an outpatient by Sheehan.  The third time a week later he had neurological damage.  Sweet and Sheehan both presented to the court affidavits from psychiatrists that either Sheehan did nor did not breach the standard of care.  The trial judge issued a summary judgment to Sheehan stating he had no duty to hospitalize.  The appellate court said their was a duty and summary judgment was not appropriate since the experts disagreed as to the standard of care issue.  To jury.

Harrold v Artwohl
Alaska Supreme Court

In a strange case, the plaintiff presented to the ED with symptoms of appendicitis.  The ED physician ordered a CT scar but the reason was never given.  The scan showed an appendolith and a surgeon, Dr. Artwohl was called.  The surgeon examined the patient and agreed with the diagnosis of appendicitis and recommended surgery.  He told the patient that another CT scan could be done but surgery was better.  The appendix was normal.  The patient sued for med mal and lack of informed consent.  The physician was given summary judgment on both counts but the patient appealed.  The upper court decided that there was no med mal but there was a possible lack of informed consent.  There was a genuine issue of fact that if he was told a CT could definitely rule out appendicitis.  If he was not told this then all alternatives were not discussed and the consent for the surgery was not informed.

Hughes v PeaceHealth
Or. Ct. App.

A patient died due to the negligence of three physicians employed by PeaceHealth.  PeaceHealth was sued as the employer and lost $100,000 in economic damages and $1 million in non economic damages.  The hospital appealed the $1 million because Oregon has a cap on med mal of $500,000 on non economic damages.  The plaintiff appealed and lost since the state supreme court had given its blessing to the cap in wrongful death cases in the past. 

Spires v HCA

Mrs. Spires filed a lawsuit against HCA for systematically and by design reducing the amount of nurses in its hospitals.  The suit asks for class status and requests $12.5 Billion.   

Otero v Vito
MD Ga.

The hospital was sued for the negligent credentialing of a podiatrist who did cosmetic leg lengthening.  Under state law no podiatrist may have credentials for this procedure.  The hospital not only gave him privileges which he was not legally entitled to but also gave him the resources to do the illegal surgery.      Top


Indiana v Williams
Filed Criminal Charges

Indiana has filed a criminal complaint against a midwife who helped in a home delivery and the baby died.  The complaint is not about the death but for practicing without a license.  Indiana and about nine other states do not allow midwives to deliver babies unless they are certified nurse midwives.  The law as it stands is squarely against Williams.  The legislature needs to be involved in potentially changing the law.  

Speaks v Krause
5th Circ.

 A Chiropractor was moving from Texas to Louisiana and intended to solicit for patients via telemarketers.  The Louisiana Board of Chiropractic did not like that solicitation and voted to not allow the telemarketing.  The Chiropractor sued and won due to the more liberal commercial free speech.  The court stated the law was not narrowly drawn and covered too much commercial speech.       Top


Wisc. Physician Service v Aurora Health

Aurora originally sued Wisconsin Physician Service for breach of contract.  The original suit alleges that the insurer left out the Aurora physicians in its plans.  The counter suit after a failed mediation claims Aurora has market power in some locations and seeks triple damages.  Sounds like a SLAPP suit in the making.  

San Francisco v Brown & Toland

San Francisco has filed suit against the largest group of physicians in the city for unfair business practices.  Brown & Toland has begun a campaign to sign up the physicians who take care of the city's Chinese population in exclusive contracts.  They are trying to force the closure of Chinese Hospital and have the population come to their hospital.  This will not end up well for B&T.  They will eventually drop their campaign or take the physicians as non exclusive as they did with the St. Luke's physicians over five years ago.      Top


US v Alvarado Hospital

For the second time the government's case against Alvarado Hospital has ended in a mistrial.  The allegation is that the hospital gave illegal kickbacks to physicians in their recruitment program.  Both trials failed  to get the required unanimous verdicts.        Top

Fraud and Abuse

Colorado v PacifiCare

Colorado did an investigation of PacifiCare and Fortis Insurance for alleged late payments to physicians.  The state not only found the allegations were true but also found that the companies had underpaid the physicians since 2001.  The insurers are to pay $2.7 million to the defrauded physicians.   


 Three accountants from KPMG have agreed to a settlement without admitting liability that they submitted an audit to the SEC without having done all the important procedures while working on Tenet's Medicare outlier payments.   By not admitting liability and by agreeing to the settlement which does not allow them to appear or practice before the SEC they have shown their guilt. 

US v Boulis 
Guilty Plea

Markell Bouli, DC has pled guilty of holding seminars on how to build Chiropractic practices.  He advised the Chiropractors to use National Insurance Auditors to collect unpaid bills.  He left out the small fact that he owned that company.  He also left out the fact that he would alter the insurance codes submitted and bill the insurance companies double.  He defrauded the insurance companies of about $8.2 million and will get up to five years in prison plus a measly fine of $250,000, chump change.  

US v Corbin

 The breast expert, Beverly Hills Plastic Surgeon, Fredric Corbin is been accused of smuggling silicone breast implants into the county from Mexico and falsifying records to enable women who were not eligible to receive the experimental Mentor implants.  If found guilty he could get 10 years fixing breasts in prison.  This was the case where a disgruntled former employee blew the whistle on the physician. He also committed fraud in 1992 and was tried for it.  He forgot to put that on a hospital application and when it was found he was terminated from the medical staff.      Top


Bagent v Blessing Care
Ill. App. Ct.

Bagent had blood tests and those results were given to the patient's sister by the phlebotomist at a bar.  The plaintiff sued the hospital that employed the phlebotomist for emotional distress and invasion of privacy.  The trial court found for the hospital on summary judgment since the employee was not in the employ at the time of the telling in the bar.  The Appellate Court reversed and stated it is a question of fact that needs to be decided by a jury if the phlebotomist was still in the scope of her employment since the employee has a duty not to disclose confidential information even when off duty.

Thornberg v Superior Ct.
Cal. Ct. App.

In a twist on HIPAA, a company that contracted with a hospital for patient record retrieval was bound by HIPAA for the amount charged for copying patient records.  The company was acting as an agent for the hospital which was a covered entity.  This will end all contracts between hospitals and these types of organizations.  Hospitals, hire more people.  You won the case but lost the battle.  

McMillan v Oconese Hosp.
SC Supreme Ct.

At the trial court the plaintiff anesthesiologist who was shut out of working at the hospital because of an exclusive contract won on a conspiracy between the hospital and the group.  The jury awarded over a million dollars against the hospital.  The higher court overturned the decision because there was only a verdict against the hospital and there needs to be a verdict against both to support the conspiracy theory.        Top

Peer Review

Catipay v Humility of Mary Partners
Ohio Ct. App.

A physician was suspended for disruptive conduct for basically sexual harassment and a hostile working environment and not telling the hospital that his privileges had been suspended at another facility.  He sued the hospital under the theory that the hospital did not qualify for HCQIA protection because there was no patient harm.  The court stated that HCQIA does not mention patient harm, only the furtherance of quality healthcare.   

Breburda v Ochsner Clinic

The physician terminated his employment while under investigation.  The hospital was found to have a statutory and common law duty to report the physician to the National Practitioner Data Bank.  They based their common law theory on a case they had decided in the past where they found a hospital liable for not telling another hospital about a physician they had terminated.  This makes the hospital to be mandated under common law to make the report. 

St. Joseph v Cardiac Surg
Md. Supreme Ct.

The Maryland Supreme Court overruled a lower court and stated that email and other written material sent to peer review committees are privileged.  This overruled a decision that only materials generated by the committee are  protected. The underlying suit were between two cardiothoracic groups which both have physicians practicing at St. Joseph.  The Court stated that if any of the material was part of an exception to the peer review law by virtue of being available from another source, the other source should be the one who should be subpoenaed for the information.     Top


Does v Massachusetts
To be Filed

Massachusetts ran Danvers State Hospital from the time they closed it down in 1992 until recently when it was sold to a developer.  The medical records from the 1960s and 1970s of the mentally ill patients remained in the defunct hospital until they were stolen and auctioned on the internet.  The state had a duty to protect these records or destroy them.  They did neither.        Top


California has done it again.  The federal judge who delayed the execution of a murderer and rapist due to lethal injection being potentially cruel and unusual punishment, has set up a string of the same verdicts across the country.  None of the judges (mostly Democrats) have any medical knowledge about the normal perimortum twitching that occurs and state along with the defense attorneys that it is due to pain.  Now the judges are stating that there must be a physician present to make sure things are going correctly.  The AMA has a guideline that does not have to be followed that states that physicians should not participate in the executions.  It appears the actual problem is the inappropriate use by untrained personnel of the first drug, thiopental.        Top


WD Tenn

The patient claimed the hospital did not stabilize an emergency medical condition.  He had depression and stated all that occurred was the intake and having him go to an outpatient clinic.  He later attempted suicide.  He presented a physician statement that he was not stabilized.  The kicker was the hospital "lost" the records so was unable to rebut the patient's information.  No summary judgment for this hospital.  To trial.

Estepar v Metropolitano Hosp.

In yet another case from Puerto Rico a patient sued the hospital and the physicians for negligent transfer under EMTALA.  The case against the physician was tossed since EMTALA is not a federal malpractice law.  The case against the hospital may proceed to trial as to the facts of the transfer.

Hoffman v Tonnemacher
ED Calif.

Hoffman sued the physician for negligent screening and a misdiagnosis.  The case like the one above could not hold under EMTALA.  The case against the physician may hold under EMTALA if he did not follow the hospital's EMTALA policy.        Top


Florida v Presidential Women's Cntr.
Florida Supreme Court

Florida has a law regarding abortion informed consent.  The law states the physician must inform the women of statutory information and obtain their signature.  The law was challenged as being unconstitutional as vague.  The Supreme Court ruled that as with any medical procedure it is appropriate for a physician to obtain a consent.  The law does not expect physicians to tell patients about non medical aspects of abortion.        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.