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As I am sure all know by now New York has banned the use of cell phones while driving. In a suit related to cell phones, Smith Barney settled a case for $500,000 when an employee on a car phone ran a red light and killed a motorcyclist. In a recent case Jane Wagner, an attorney for the law firm Cooley, Goodward, Wagner was on a car phone doing billable hours when she hit and killed a 15 year old boy. She was so engrossed in the call and making the billable hours that she did not realize she had hit him and did not stop. The next morning she heard about the accident and turned herself in. She is now serving a one-year sentence in a work-release program. The family is suing Wagner and the firm under the tort of vicarious liability for $30 million in damages. Although I am usually in favor of the legislative process and not the courts to make policy I would hope there will be more law suits against the employers regarding the use of the phone while driving and that these cases are well publicized. There are some that say it is not fair to outlaw cell phones and not outlaw eating and driving, etc. I think it is a great start. Top
Robert Wendland, an accident victim who was permanently paralyzed and unable to communicate, died from pneumonia. He was at the center of a wife vs. estranged mother case, where the wife wanted to withdraw the feeding tube and the mother opposed it. The courts ruled that the wife had precedence and could request the removal of the tube. The California Supreme Court had agreed to hear the case in it's next session. The widow and the mother both request the court to continue with the hearing to determine when conservators could remove feeding tubes from incapacitated patients. Top
A Maine urologist is the fourth to have pled guilty in the Tap Pharmaceutical scandal. Tap gave Lupron to the physician and the physician charged the insurer as if he had paid for the drug. This is only the tip of the iceberg of urologists to be charged for this crime. TAP will be charged for this and will pay a fine of about $840 million. They have already budgeted for this. Top
Health insurers are going to court against their insured who are injured in accidents and require medical care. Some of these wonderful companies are seeking reimbursement for the full charge for the procedure even though they paid only a discounted price. There are some states that bar insurers from suing their insureds. The plans believe they are only covered by federal and not state laws. The courts have issued conflicting opinions on this and the final decision will probably be left up to the US Supreme Court. The Health Plan of the Upper Ohio Valley found themselves behind the eight ball. They sued to collect $128,000 for their expenses. The family countersued stating the plan only paid $70,000 and that turned into a class action suit. The Plan settled for $9 million and the collection agency settled for an additional $3 million. Be careful what you wish for. You may get it. Top
HMO and Competitor Suing Hospital
Managed Care of America and West Penn Allegheny Health System, the area's largest hospital network, has joined the law suit that Highmark and several other insurers have filed against the merger of Children's Hospital and UPMC in Pennsylvania. West Penn does not state the fact that they were loaned money by Highmark so West Penn and Allegheny could merge. The plan stated it has such a difficult time with UPMC that they have had to send patients to the Cleveland Clinic for a lower cost but a high price for the patient's family. I don't understand why people put up with plans that cause such havoc. Join another plan.
The US Justice Department has reviewed and given its blessing to the merger. It still needs final government approval but this ruling will make it harder for the insurers to prevail in court. The State Attorney General is still reviewing the merger.
While all this is going on Children's has stated that Aetna still has a contract with it despite the lack of a contract with UPMC. Top
Dr. Rath and Rexall showcase International had a contract for Rexall to market Dr. Rath's product. Dr. Rath sued Rexall for breach of contract. The contract had an arbitration agreement. Rexall went to court for an injunction to stop Rath from disclosing any proprietary information and the return of all confidential information and to restrain Rath from using any clinical study results from Rexall. Rath did not contest the injunction and did not comply. Eventually the Florida 4th District Court of Appeal ruled that by seeking an affirmative injunction Rexall had forfeited its right to arbitration. Rexall needs a different attorney. Top
A federal judge has overturned a Medicare PRO ruling allowing physicians to block the results of investigations flowing to the patients. The new ruling, which may be appealed by CMS, means that the results of complaints against physicians referred to a Medicare PRO will eventually be sent back to the complainants. These answers of whether or not the standard of care was breached now public may be allowed in malpractice suits. This means that PRO personnel will be spending a lot of time in court defending their reports. It may also mean less physicians participate in the process. Top
HIV Patient Sues for Transplant
Brenda Dunn has hepatitis C and is HIV +. She has requested a liver transplant and been turned down three times by Neighborhood Health Plan. The AIDS Action Committee of Massachusetts was going to court on her behalf to force the HMO to pay for the transplant. She would receive a lobe of her brother's liver. The plaintiff states the reason she has been rejected is because of her HIV status. At least 20 public and private insurers pay for transplants in HIV + and Hepatitis C patients. The State medical review panel upheld the HMO decision. The HMO has since voluntarily donated $100,000 for the transplant. The Boston mayor also has raised additional moneys to exceed the required $250,000. Top
Blue Cross is suing a small Pennsylvania hospital, Grand View Hospital. The allege Grand View was negotiating in bad faith and for slander. Blue Cross is seeking $50,000 in damages. Blue Cross also wants to continue to meet to settle their contract dispute. The hospital doesn't know how they can meet with someone who has just sued them. This type of suit is illegal in some states. It is called Strategic Litigation Against Public Participation or SLAPP. It is usually when a person sues a government agency and the agency sues them back for harassment. This could be a variant since Blue Cross seems o be suing to force negotiation. It probably means there will not be a contract between the entities until the suit is dropped. Top
Aurelio Jimenez, an Indiana podiatrist, was sentenced to 68 months in jail for improper numbers and complexity of procedures submitted for payment. He also was fined $2.76 million in restitution, $600 in special assessments and to pay the government $230,408.91 for their investigation. Of course, he is also barred from Medicare and Medicaid.
A Metairie, Louisiana Board Certified (means a lot) internist and cardiologist pled guilty, three months after an indictment, to Medicare fraud for overbilling $300,000. He charged for complex consultations when the records showed only simple ones or did not see the patients at all. The government followed the physician and timed his length of stay at each hospital and nursing home. He spent at total of 6 hours and 53 minutes in the institutions but billed for procedures that would have taken 19 hours to perform. A year earlier he stated he saw 73 patients in a day and billed for 33 hours and 58 minutes for that day. I know days seem longer in Louisiana, but this is ridiculous. His punishment is $300,000 in restitution with $100,000 due at the time of sentencing. he also faces fines of up to $250,000 and up to 10 years in prison.
American HomePatient settled with the government for $7 million for violating the False Claims Act. There was inadequate supporting documentation for its claims. There was also illegal kickbacks by the company for referrals. This was a Qui Tam suit and the whistleblower will get $1.17 million of the settlement. Top
Gabrelcik v Mayo Clinic
Fl. Superior Court
A Mayo Clinic physician was hit with negligence in performing a biopsy on the patient's neck. This was the same spot where she had a biopsy in the past. Following the biopsy she had nerve damage with permanent difficulty speaking and swallowing. The damages amount was $4.8 million to the patient plus attorneys' fees and court costs. Believe it or not the attorneys are asking for an excess of $1 million in a separate proceedings against Mayo. Mayo will appeal the decision. Top
Krolikowski v U. Mass.
Dist. Mass.
Dr. K, a female radiologist and OB, sued her employer the U. of Massachusetts for multiple torts including being paid less than her male counterparts. She filed a motion to produce documents and answer written questions. The University, citing state law, refused. The District Court granted the motion for discovery of peer review material since this entailed a federal question and federal law preempts state law. The balance is that the federal law does not have a peer review privilege and the interest of combating gender discrimination outweighed any peer review privilege.
Manzetti v Mercy Hosp. of Pittsburgh
Penn. Supreme Court
Manzetti is a cardiac surgeon on the staff of Mercy Hospital. He had a poor record of surgical complications and also did only 20-40 open heart surgeries a year, far below the recommended 100 per year. He had his cardiac surgical privileges suspended and then went through good peer review and lost. He sued under antitrust since the chief of the Division was a competitor. All Courts agreed with the hospital regarding the suspension of privileges and his inability to sue for monetary damages. One of the most damaging statements was the anesthesiologists who stated that if they had a friend that needed open heart surgery they would not allow him/her to go to Dr. Manzetti. It was interesting that this case that just finished started in 1994. Top
A physician in West Palm Beach, Florida has been charged with murder for improperly prescribing OxyContin to someone who died of an overdose. He was also charged with racketeering and drug trafficking. Several months ago he was charged with Medicaid fraud and his office manager was charged with fraud, trafficking and racketeering. Other physicians around the county have been charged with manslaughter for this offense but if this physician is convicted he faces either death or life without parole. The prosecutor states "this is a new concept." It certainly is! Top
An El Paso, Texas jury has told two Columbia Hospitals to pay Dr. Beltran $4.5 million plus $800,000 in attorneys' fees for breach of contract and fraud by reneging on a doctor recruitment program. The Columbia hospitals apparently contracted with Dr. Beltran to bring to the county 25 new physicians and to help them get established. After Beltran did as was asked, Columbia withdrew its support leaving him out on a limb. The result was only against the hospitals and not the national company. The dispute came about when the hospital administrators demanded that all the newly recruited physicians were to send their patients only to the two hospitals. Beltran refused to make that an order since it is illegal and away went the hospitals. Top
Walgreen Sued for Not Giving Discounts
Walgreen pharmacy has been sued in a private action in Florida for not giving discounts to Medicare beneficiaries. Florida has a law that Florida residents on Medicare are only charged for pharmaceuticals a price not greater than the cost of the ingredients equal to the average wholesale price minus 9% and a dispensing fee of $4.50. The suit is for failing to give adequate notice to seniors about the policy. The plaintiffs are suing because when they found out about the policy they asked for discounts back to the beginning of the program and Walgreen refused. The law states patients must present their Medicare card to get the discount. The plaintiffs did not do this on the prior occasions. I don't understand a law that lets millionaires and those above the poverty line to get the same benefits. 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.