April 15, 2014 Recent Legal News




Peer Review and Employment



Allen v Takeda 

In a runaway jury case the plaintiff was awarded $9 Billion for his bladder cancer that was supposedly linked to taking Actos for five years.  The award was against the maker Takeda and Eli Lilly, but Lilly has been taken off the hook by Takeda who is to pay all judgments regarding the pill.  In all other cases the plaintiff has lost but this was in Louisiana, the home of jackpot justice.  It will be interesting to see what the judge does in the post trial motions.  The appeal will also be interesting.  The main issue against the company was the destruction of many email files of many people that the trial judge stated the jury could infer the bolstering of the plaintiff case.

Patients v California Pacific Med Center
To Be Filed

Yet another hospital has failed to sterilize instruments correctly.  The hospital has warned patients that had a laryngoscope, bronchoscope or esophagoscope used on them for four years should be tested for HIV and Hepatitis.  The good news is this is only 200 patients.

Patients v St. Joseph Medical Center

Two class action suits have been settled.  The allegations were that Dr. Mark Midei did many unnecessary cardiac procedures at the hospital.  The new owners of the hospital are responsible for the payments.  Dr. Midei was not named as a defendant in the filed cases.

Haskell v Hernandez

The patient's widow was awarded $1.1 million in damages against Dr. Hernandez of Bangor, Maine.  The surgeon and the hospital were found not liable.  He had heart bypass and bled to death 4 days post operatively.  The hospital states he died of adult respiratory distress secondary to pneumonia and sepsis.  The problem was that Hernandez did not due blood tests to determine the need for transfusion but instead did an mental calculation to make the determination.  The plaintiff's attorney is also a physician. 

Burnette v Eubanks
Kansas Trial Court

 The jury awarded the parents of the 40 year old who committed suicide $3 million.  The son had MRSA meningitis after an epidural injection for back pain. This left him with problems with bladder and bowel control as well as impotence.  He also had bipolar disease and depression.  The verdict will be appealed.   

McCormack v Kerin

The plaintiff had an appendectomy performed by Dr. Kerin in Lawrence Hospital in New York state.  The path report showed a yellowish blob but not an appendix.  The patient was not told and a year later had another attack of appendicitis and required a second appendectomy.  

Blake v Main Line Hospitals

In a case of poor lawyering or stupidity the hospital lost the summary judgment ruling on a suit that alleges not only malpractice but an EMTALA violation.  The reason was the attorney did not put the hospital's standard screening procedures into evidence.  Instead he relied upon oral testimony to state what the normal screening procedures are.  The only excuse is if the hospital did not have any procedures in writing which is very very doubtful.  The case is one of a patient with chest pain who died in several hours of a ruptured aneurysm.          Top


US v Herrero

Dr. Adelina Herrero of Ann Arbor, Michigan, has pled guilty of Medicare fraud.  She signed authorizations for patients for home health but never saw the patients.  She caused Medicare to pay $1.4 million in fraudulent claims.  She got a kickback from the home health people for falsely signing the authorizations slips.

US v Vanderbilt University
MD Tenn

The University attempted to get the suit by three physicians dropped.  They failed.  The court stated that the physicians had specific knowledge of the fraud even though they did not present it in their pleadings.  

US v Barrows

 Dr. Robert Barrow and his wife Dr. Angela Barrow of Little Rock have been indicted for fraud.  They are accused of doing massage therapy and billing it as physical therapy as well as billing for ultrasounds never performed.        Top


HHS has reported that 30,000,000 people have been the victim of HIPAA breaches since September 2009.  If there were not electronic records, how many records would have been stole?

Patients v Palomar Health
To Be Filed

In yet another hospital goof about 5000 patients had their health information taken when a laptop and two thumb drives were stolen from a car.  The laptop was encrypted but the thumb drives were not.  The laptop was recovered due to a tracking device.

Patients v Kaiser
To Be Filed

Kaiser has notified their patients about a malware problem in 2011 that was not discovered until February, 2014.  They did not disclose how many patients were on the server hacked.

Patients v Jamaica Hospital
To Be Filed

Jamaica Hospital in Queens, New York, has found that two of their ED clerks have been illegally accessing patient information.  They then released the information to outside businesses and individuals.  The pair are now in custody and face four years each in prison.

Patients v Midwest Orthopaedics
To Be Filed

Patients of the snooty sounding name for carpenters have found that a physician's account was hacked and information about 1200 patients information was obtained.        Top

Peer Review and Employment

Villare v Beebe Medical Center
Del Superior Ct

Dr Villare, a surgeon at the hospital, was late in requesting re-appointment to the staff.  His privileges were not renewed and he appealed but then withdrew his appeal.  He sued for breach of contract relying on the bylaws as a contract between he and the hospital.  The hospital asked for a summary judgment since there was no contract.  The hospital won because the bylaws state that staff privilege is a privilege and not a right.  They are a process.  Even if it were a contract the physician could not prove damages.

Doss v St. Clair Med Ctr.

The black female was given a 90 day termination notice in her position a Chief Certified Nurse Anesthetist.  She sued for discrimination and of course lost.  She was terminated for performance issues.

Colantonio v Mercy Med Ctr.
NY App Div

Dr. Colantonio sued for defamation for the malicious NPDB statements.  He won since the statements made by the medical center were false and made with malice.  This overcame the motion by the medical center to dismiss the defamation complaints.  He not only won the case but costs as well.  Hooray for Tony!!  Keep after them!

Gentilello v U Texas SW Health
Texas App Ct

Dr. Gentilello filed a qui tam suit for federal and state false billing against the hospital.  After filing the claim he was demoted and sued for retaliation.  The case was settled with the physician being allowed to continue his suit and then the hospital claimed state immunity.  The plaintiff cried foul but lost since the settlement agreement did not clearly state the immunity was waived.  Duh.

Blom v Wellstar Health
11th Circ

  I do not understand how a case like this can get to the 11th Circuit.  The physician plaintiff was a medical director at the hospital.  She was fired for good business reasons of not performing her job duties.  She sued for sexual discrimination and a quid pro quo sexual harassment claim.  The courts found that the hospital had legitimate business reasons for firing her.

Chen v Bright Health Physicians 
Ca Ct App

In a case of hubris, the dermatologist is an independent contractor who provides services via a network that includes employed physicians.  The network sent a memo to the physicians that Chen for a week did not keep his scheduled appointments, did been unavailable and did not notify patients of a leave of absence.  He was also dropped from the referral list.  Interesting that this occurred after a dermatologist was hired. Of course, Chen was on vacation that week and had no appointments and had coverage.  Chen sued for defamation and prevailed in the court of appeal on a summary judgment motion.

Holmes v East Cooper Community Hospital
Supreme Court South Carolina

Dr. Cynthia Holmes, a MD, JD, ophthalmologist, was on the hospital consulting staff and was denied advancement to active staff.  She sued and remained on the consulting staff.  She on the next re-appointment cycle did not put in the information requested and was removed from the staff.  She sued many times, a real frequent flier.  The court finally had enough and not only continued to rule against her but gave the hospital fees and costs of $53,447.15.  They had ruled on prior occasions that the courts had no jurisdiction in this matter.  To answer the question, no she did not represent herself but I bet she had a lot of input.        Top


On Trial

Dr. Stan Xuhui Li worked during the week as an anesthesiologist at Robert Wood Johnson University Hospital in New Jersey and each weekend ran a clinic in a Flushing, New York, basement.  He is accused on running a pill mill at that location along with health care fraud.  He is on trial for two counts of second-degree manslaughter and seven counts of reckless endangerment as well as 180 count of illegally selling prescriptions for narcotics.

US v Zikit
Conspiracy and Drug Dealing

Dr. Joseph Zolot and his nurse practitioner were going to be tried for the death of several people due to drug overdoses.  They no longer can be tried for this under a January ruling by the Supreme Court which requires prosecutors to prove drug dealers were responsible for a death because the drug he provided was the exact and only cause of the death.  This is a very high bar.

US v Bhuthimethee

Dr. Viwathna Bhuthimethee of Alton, Illinois was sentenced to one year and one day in federal prison for for health care fraud and illegally prescribing drugs.

New York v Clarke

Dr. Michael Clarke of Syracuse, New York, is under investigation by the local DA for slapping patients under spinal anesthesia.  He states that it was to check to anesthesia level but others in the OR have claimed it was for other reasons.  He also has been accused of obscenities in the OR and no longer practices at St. Joseph Hospital but has moved to Crouse Hospital.  St. Joseph is under investigation by the feds for allowing this behavior and for significant infection control problems. 

US v Schuster

Dr. Michael Schuster, of Manhattan, Kansas, has been sentenced to five years in federal prison for distributing illegal drugs.  He employed many people to distribute the drugs and none had the legal authorization to do so.  He had over 500 patients receiving prescriptions when he was out of the country.  He pled guilty and agreed to the loss of his medical and DEA license, pay restitution of over $100,000, forfeit his medical building and lose two bank accounts totaling about $11,000.         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.