April 15, 2011 Recent Legal News








Connecticut v Austrian

Dr. Donald Austrian of Trumbull, Connecticut, was arrested for self medication of narcotics and selling narcotics.  He was charged on 18 counts.  The hospital has suspended his privileges pending an investigation.          Top


Benson v Sebelius

The District Court ruled that Medicare is entitled to reimbursement under the Medicare Secondary Payer Provision for a beneficiary's medical expenses from wrongful death settlements.   The family in going after the tortfeasor put the cost of the hospitalization as part of the expenses. The ruling stated that the entire bill Medicare paid is up for reimbursement not just the part related to the tort.

Wendling v Southern Ill. Hosp.
Illinois supreme Court

The Illinois Supreme Court overturned the two lower courts and ruled that a hospital holding a statutory lien on any proceeds obtained against a tortfeasor was allowed not only their lien up to 40% of the judgment or settlement, they can sue for the remainder of their charges and are not required to share in the legal fees paid by the patient. 

States v Sebelius

In the Florida case won by the states, the feds are now asking for an appeal to the Circuit court.           Top


Darbari v Lenox Hill Hosp

Dr. Sunil Darbari applied for a position at the hospital.  He was offered a contract and accepted the contract.  He was later notified by the hospital that his offer of employment was rejected due to questions about his qualifications.  He sued for breach of contract and lost for two reasons.  The first was not doing all the administrative things he was supposed to do prior to filing suit. That was a mistake by the attorney.   The other was because the employment agreement allowed the removal of the offer if it determined the applicant lacked the qualifications required.   

Merrick v Littleton Hosp

Dr. Merrick, an ED physician, has Tourette's Syndrome.  While examining a patient he exhibited multiple tics.  The hospital became concerned about the tics and placed him on suspension.  He was then placed on an involuntary leave of absence.  He left and sued the hospital in federal court for disability discrimination claims. He requested information from the hospital for complaints related to other ED physicians.  The court granted some of his requests for information prior to his suspension and all suspensions for causes similar to his own suspension.  He was not entitled to peer review information obtained the investigation and disposition of the complaints as that is protected.   

Garib Bazain v Hosp. Espanol Auxillo Muteo

 Dr. Garib Bazain had his medical license revoked and was convicted of fraud which gave him a prison sentence.  After his time was up, he re-applied for his medical license and received same.  He then applied for re-instatement on the medical staff.  The medical committee said OK.  The Credential Committee said OK.  The executive committee said "No".  He was given no hearing opportunity.  The Board agreed with the executive committee and also refused a hearing.  He then sued in state court for an injunction to prevent a report to the NPDB and for illegal bylaws.  The hospital said it was protected by HCQIA and removed the case to federal court.  The court ruled against the hospital since only the plaintiff can remove the case with his pleadings.  The answer can not be used to remove a case.  Here there were no federal issues in the pleading and the case was remanded to the state court.  In the meantime the hospital reported to the NPDB and the physician amended his pleading that asked for an order rescinding the report.  

Wilcox v Hi-Desert Memorial Healthcare

Dr. Wilcox, one of the members of the hospital Board, had his privileges at the hospital reduced.  His ED call was curtailed and some procedures were restricted.  The hospital also reported him to the Medical Board who investigated the charges and did not pursue any action.  Why was this done?  Dr. Wilcox believes that it was because he complained about the poor care delivered by the hospital and its medical staff.  He states the hospital has a name for the delays in treatment, "the Hi-Desert Delay".  It should be an interesting trial because the hospital will get terrible publicity.  Of course this will not happen for several years and during that time the physician's loss of income increases.  

Stuart v Upstate Medical

Dr. William Stuart, a neurosurgeon, has filed suit against the hospital after of whistleblowing led to his dismissal.  He turned in the hospital to the state and after an investigation the state health department chastised the hospital for not providing surgical services in a way "that assures protection of the health, safety and rights of patients."   The hospital then sent two private detectives to see Dr. Stuart and he refused to speak to them.  The hospital states that his lack of cooperation was the cause of his firing.  Lots of luck!  The hospital also accused him of releasing private information.  Dr. Stuart is the past head of the state licensing agency and would know not to do that.  It is interesting that another physician who also blew a whistle on Upstate for other misadventures was also fired and also had two private investigators visit and harass him and his family.  He is also suing Upstate for his termination.  It sounds like if one is a good upstanding physician they would want to give Upstate Medical a wide berth.   

Haynes v Poudre Valley Health Care

Angela Haynes, a respiratory therapist, worked at the hospital for six years.  During her tenure, she had been disciplined for various performance issues.  In 2009, another employee came across a attempt by Haynes to fax a letter to the Colorado Dept. of Regualtory Agencies with a complaint of unethical and unsafe conduct by another respiratory therapist.  The problem was she mentioned the patient's name and described the circumstances of the death of two babies.  She was terminated and sued for both federal and state causes.  The federal court tossed her federal charges on summary judgment because there were no federal medical patients mentioned.  They allowed the state action for wrongful termination to continue.   

Shen v Shinseki

Dr. Shin is employed by the VA.  She filed a claim against the VA at the EEOC.  After the claim was filed the VA wanted to get rid of her and report her to the NPDB.  They filed multiple complaints about her but many were rehashes of prior complaints.  She sued the VA to enjoin them from firing her and reporting her to the NPDB.  The court sided with the physician and enjoined the VA stating that the facts showed probable retaliation against her.  She can go ahead with her EEOC claim.    Top


Weiss v Jewish Hosp 
Ky. Ct. App.

It seems strange that this got to the Court of Appeals as it is so straightforward.  A patient was getting a plastic surgical procedure in the hospital and the drapes caught on fire causing injury to the patient.  The hospital moved for summary judgment since the physicians were independent contractors. The lower court inexplicably ruled for the hospital.  The court of appeals overturned the lower court and stated that the hospital had a duty to minimize the danger of a fire.  The court noted that another patient at the hospital died after a fire. This led to foreseeability, the most important aspect of duty.    

Patients v Meds IV Lab
To Be Filed

In Alabama nine patients died and 10 more were seriously affected by contaminated IV feeding bags.  The bags in the various hospitals all came from Meds IV Lab.  Since this happened the company has recalled all its products and closed. The problem was a filter.  The question is whether the filter was faulty or was it used incorrectly.         Top 


US v Rex Healthcare

Rex Healthcare has agreed to pay the feds $1.9 million for admitting patients for kyphoplasty when it is an outpatient procedure.      

US v Hall

Two more office workers have been accused of HIPAA violations which led to identity theft and stealing from the accounts.  Previously 11 others were indicted.

US v Sevilla

Adelena Sevilla, a RN, pled guilty of healthcare fraud.  She was part of a home health fraud ring in Houston, Texas that used people to enroll patients for care not needed.

Tenet v Community Health

Community Health attempted to purchase Tenet.  That offer was refused but Tenet state that while doing their due diligence they found that Community Health overbilled Medicare by admitting patients that should have been outpatients.  I am sure the feds will soon be snooping around.  

California v Sutter Health

 California has intervened in a prior lawsuit against Sutter Health for false billing for anesthesia services.  This was originally a whistleblower case against Sutter and Multiplan Inc.   Top


States v Sebelius
D. Fla

The Missouri AG, a Democrat, has filed an amicus brief against Obamacare with the Court.  This make the 27th state to file against Obamacare.  All of ten states the the wonderful AHA have signed for the law.        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.