April 15, 2009 Recent Legal News



Peer Review







Mass. v LaBrie

Ms. LaBrie has been arrested for child endangerment for not giving her nine year old autistic child chemotherapy.  The child had leukemia and the mother did not fill prescriptions and missed multiple appointments for treatment.  The child has now died and the state is considering other charges.   

US v Gallion

Two attorneys, William Gallion and Shirley Cunningham of Kentucky were found guilty of stealing client funds in the fen-phen drug settlement.  They face 20 years in prison and $250,000 fines.  They tried to keep twice what they were owed and did not tell their clients the size of the settlement and how much they would get.  The attorneys used the ill gotten gains to buy a share in Curlin, the winner of the Preakness. The jury voted to have them forfeit $30 million and also lose another $20 million from separate accounts.  The disbarred attorneys also have a $46 million judgment against them in a civil case.       

Ohio v Nucklos
Ohio Supreme Ct.

Dr. Nucklos, a pain specialist, was indicted on felony drug trafficking for prescribing OxyContin for non medical reasons.  The law states that physicians are exempt from criminal liability if they act within the standard of care.  The prosecutors stated that this meant the physician would need to prove as an affirmative defense that he or she acted lawfully.  The judge instructed according to the prosecutor's wishes and the physician was convicted.  The Court of Appeal overturned his conviction due to an impermissible reversal of the burden of proof.  The Supreme Court agreed with the Court of Appeal stating it is up to the prosecution to prove its case not the defense to prove its.  The prosecutors, to no one's surprise intend to re-file.

LA v College Hospital

 The LA city attorney came after College Hospital for illegal dumping of homeless patients from the hospital to skid row.  After an investigation it was found the the hospital had illegally dumped over 150 mentally ill people.  The hospital will pay $1.6 million in penalties and charitable contributions and agreed to an injunction against it.  The hospital as all who are caught and settle deny any wrongdoing but nobody believes any of them.         Top


Patient v Hospital

Healthleaders recently published a report written by Amy Tuteur, MD regarding an OB patient that died.  She states she was interviewed after the incident and blasted the anesthesiologist for killing the patient.  She then stated that several years later there was a med mal suit over this case.  The deposition was held and a copy of her deposition was falsified by the hospital.  She had a copy of the original to disprove the one by the hospital.  The patient received a ten figure settlement.  In the comment section that followed there were many who disbelieved her story.  Is it true or not, I have no clue.  However it is a great lesson to keep all important papers that you sign. 

Long Beach Memorial Hosp v Conners
Ca Ct App.

Conners sued the hospital and several physicians for med mal in a bad baby case.  The hospital defendants settled for $8 million globally.  The following day the physician settled for $250,000 with the plaintiff.  The trial court stated the physician settlement was in good faith.  The court of appeals overruled the trial court and allowed the hospital to come after the physician for his part in the med mal.  The court went on to say that the physician had significant liability in this case and a settlement for 2% of the total does not pass the smell test. 

Seisinger v Siebel
Ariz. Supreme Ct.

The Arizona Supreme Court allowed the state to have standards for expert witnesses in med mal cases.  The legislature is free to put on the standards that must be met to be an expert witness.  This is important in Arizona since the constitution prohibits any caps.  The rules passed by the legislature in 2005 have led to a 20% drop in filings and an 11% decline in insurance premiums. 

Patients v VA
To Be Filed

In the I don't understand how this can happen mode is the VA's mistake in three hospitals.  They did not clean their endoscopy instruments correctly and to date one patient has become HIV positive and 16 patients have become positive for hepatitis.  There is no way that one can prove causality however that does not stop plaintiff attorneys.  The VA has warned 10,000 patients from the Miami, Tennessee and Georgia hospitals to get tested due to the error.  Ain't government medicine wonderful.   

Rodriguez v LA County

The County settled the suit with the family of Edith Rodriguez for $3 million.  Ms. Rodriguez is the woman who died due to lack of care at Martin Luther King Hospital in the waiting room and staff walking around her as she was in pain on the floor.  There was a call to 911 but the dispatcher said it was not an emergency since she was already at the hospital.  Eventually she was arrested so she could get better care at the jail but she died while in custody.  This case was the final straw that closed the nation's worse hospital. 

Patients v Northwestern Univ
To Be Filed

 Hundreds of patients, mostly newborns, have been exposed to TB by a resident in the program.  She went to three Northwestern Hospitals in her rotation and potentially contaminated all three.  The good thing is her TB is not the resistant type so the usual drugs can be used.  All have been notified and offered skin tests.   Top

Peer Review

Ripley v Wyoming Medical Ctr
10th Cir

Dr. Ripley, a dentist, was denied full admitting privileges at the medical center.  The reason was the bylaws only give physicians admitting privileges.  Dr. Ripley may have been admitted to the allied health professional section.  He sued for anti discrimination under a Wyoming law stating public fund hospitals shall be open to all professionals.  The trial and appellate courts said it is not a property right and hospital decision is granted great deference.  There may be a state law interest but not a federal law interest.   

Roby v Fairfield Rehab
Alabama Supreme Ct.

Roby sued and as part of discovery wanted the incident reports relating to alleged injuries to other residents.  The court ruled that incident reports in this case were protected due to the quality improvement programs and more importantly that the reports were not kept in the ordinary course of business.

Stratienko v Chattanooga Hosp
ED Tenn

Dr. Stratienko was summarily suspended by the hospital due to a physical altercation.  Most of the claims were stale due to the statute of limitations and those that weren't came under HCQIA.  The court said that malice and bad faith are immaterial under HCQIA.  This left some minor causes of action that were removed to state court. 

Milelkowsky v West Hills Hospital
California Supreme Ct.   

In a decision that means nothing to the plaintiff but states that a peer review hearing officer may not terminate a hearing because the physician is being disruptive to the hearing.  The only ones who can do that are the peer review committee and then the Board of Directors.  This means the plaintiff will get another hearing and still may not practice medicine at the hospital until after the hearing which in my opinion he will lose again as he has in other judicial review hearings at other hospitals.  To me the decision is important and correct but this is alot of money spent over a concept and a delaying tactic to not have still another report about him to the Medical Board and the NPDB.       Top


Northeast Georgia Cancer v Blues
Ga Ct App

The Cancer Center was a member of the Georgia Blue Cross and Blue Shield PPO and HMO program.  Due to differences Northeast dropped out of the network.  The parties then settled and Northeast attempted to reenter the network.  The Blues had already entered into a year exclusive contract with a different group and even though there is a state Any Willing Provider statute, Northwest was excluded.  They sued and in trial court summary judgment went for the Blues as it did in the court of appeals.  Northeast had not exhausted all their administrative appeals prior to suing.    

People v California
9th Circ

California lost again.  They continue to try to reduce the amount they are paying for Medicaid and continually get sued and continually lose.  They have now lost in court in their attempt to reduce the payments to the pharmacists and most recently to the providers.  They probably should give up.     Top 


Bode v Parkview Hosp
ND Ind

Bode, a 6 year old with developmental problems, came to the ED for vomiting and diarrhea.  He was screened but the nurse did not follow protocol and do a blood pressure and do reassessment blood pressures.  The child died the next day of dehydration.  The suit was under EMTALA for screening and failure to stabilize.  The court ruled that not following protocol meant that Bode was treated differently than other similarly situated patients.  This allows the screening EMTALA to stand against summary judgment.  The stabilization aspect was ruled for the hospital since there was no way to know the child was an emergency. 

Moses v Providence Hospital
6th Circ

Moses took the patient to the ED of the hospital with medical symptoms and psychological symptoms.  The patient was admitted and was seen by a psychiatrist, neurologist and an internist.  The psychiatrist found him mentally not balanced and wanted him transferred to a psych part of the hospital.  That did not happen and after six days he was discharged.  Ten days later he murdered his wife.  At summary judgment the hospital raised two points.  The first is that only the patient can file an EMTALA suit and two the EMTALA regs were satisfied by admitting and treating the patient.  The district court granted summary judgment.  The 6th Circ reversed the district court due to expert testimony that the patient could not have been stabilized in the short time he was hospitalized.  The 6th stated that EMTALA states that anyone harmed (not just the patient) may sue under EMTALA. The Court went on to state the mere act of hospital admission does not take out EMTALA, there must be stabilization of the condition.  The court tossed CMS' rule regarding admission and went to the Court's interpretation of Congressional meaning.  The Court states that CMS' interpretation occurred after the incident and can not be applied retroactively even though it was only an interpretation and not a change of the rule.  There are also issues of fact which needs to be decided by a jury as to whether or not a medical emergency existed.  The plaintiff also sued the psychiatrist and the Court dismissed this under EMTALA since their is no private right against an individual.  I hope the hospital appeals this decision.     Top


Asfaq v Anderson
ND Texas

Dr. Asfaq was a professor and a chief of a department at a public hospital.  She broke protocol and the break was severe enough that the hospital removed her from her chair positions.  She sued for loss of a property interest and lost since she retained her professorship and had no loss of pay.  The court stated that physicians employed by the state hold a property interest in economic benefits but not non-economic benefits such as title.  

Nurses v St. John Health

Nurses have filed a class action law suit against multiple hospitals in multiple cities for conspiring to keep nurse wages down.  St. John Health in Michigan has agreed to settle out of the suit for $13.5 million.  It, of course, denies any wrongdoing as would anyone who paid out that amount to settle a case.      Top


US v West Valley Imaging

West Valley Imaging of Las Vegas will pay $2 million to the feds to resolve allegations they submitted false claims.  They did tests without treating physician's orders and without medical necessity.  West Valley also entered into a five year Integrity Agreement.   

US v Poulin

Dr. Ronald Poulin of Virginia Beach, Virginia, was charged with Medicare fraud in his oncology practice.  He was accused of billing for more chemo than he actually gave, that his visits were upcoded and falsified his med records.  

US v Stafford

 Dr. Bic Chau Stafford of St. Louis, a podiatrist, pled guilty of felony obstruction of a federal audit.  Stafford is on the way to retire and to be sentenced.   

Ohio v Chen

Mr. and Mrs. Chen of Columbus, Ohio, were indicted and Mrs. Chen fled to avoid prosecution on fraud charges.  The state contends Mrs. Chen lied to family and friends that she had cancer and needed money to help pay the expenses.  She did not have cancer.  Mr. Chen states he did not know the source of the money and his wife lied to him as well as everyone else.  

FTC v TriState
Advisory Letter

TriState Health Partners, a physician-hospital organization in Hagerstown, Maryland, wants to get an advisory opinion from the FTC on the proposed organization.  The two partners wanted to do clinical integration including joint contracting.  The partners believe that this could lower healthcare costs by better cooperation.  The partners would be 200 physicians and Washington Hospital.  The program would require physicians to adhere to clinical practice guidelines and make financial and personal contributions of time and effort such as working on committees. The physicians will also be required to use only network physicians for referrals.  TriState will not be exclusive so insurers can go to the individuals separately.  The FTC agreed that the amalgamation would be efficient and would be analyzed under the rule of reason.  The letter also warns that if TriState attempts to increase market power or other anticompetitive aspects they may change their minds.         Top


Halil v Med Bd of California
Ca Ct App

Dr. Halil in the late 1980s performed three abortions with disastrous complications.  He did not tell the patients about the problems and they all went to the hospital, two on their own and one in a car driven by an assistant.  His license was revoked for not telling patients their condition as well as his performance.  In 2001, he applied for re-licensure showing the Board he has attended continuing ed courses and letters of reference from physicians.  He told the Board that he had offers of employment from the physicians.  This was false.  His application was rejected.  He again applied in 2005 with again attendance at continuing ed courses and more detailed letters of references from physicians.  During the interview he made some statements that led the Board to have doubts regarding his rehabilitation.  His application was again denied.  He appealed to the ALJ and the ALJ recommended reinstatement with multiple conditions.  The Board denied the recommendation and refused to give him a license.  The physician appealed and the court of appeals said he had to as a fallen licentiate had to convince the board by clear and convincing evidence.  He failed to do this and the denial stands. The decision is unpublished therefore may not be used as precedent.  

Florida v Asensio-Gonzalez
Medical Board

The Florida Medical Board has taken no action against the physician who was the surgeon on a case where an instrument was left inside a patient.  The physician stated he was at fault and he legally was but the staff miscounted the instruments.  The Board stated that this is a system problem.  

California v Lung
Medical Board

The Board revoked the license of Roy Chi Wing Lung, an ED physician.  In 2004 he pled no contest to a burglary charge for taking two computers from a hospital.  He was ordered to pay $5000.  He was found in 2007 stealing sutures and selling them on E-Bay for $50 per pack.  The Board temporarily suspended his license and two months later he was working in a PT clinic. He stated that he believed he could only not work in hospitals.  Why did the PT clinic not check his licensure?  The Board has now revoked his license.  It is hoped he understands that.      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.