July 15, 2003 Recent Legal News

Peer Review

Insurance Payment

Fraud and Abuse



Medical Information





Peer Review

Chadha v Charlotte Hungerford Hosp.
Conn. App. Ct.

This case says that federal immunity under HCQIA and state immunity statutes may be different.  The court stated that absolute immunity did not apply to this case since the defendant doctors could not rebut the malice claim.  The case hinges on if the case is in federal or state court.    

Ostad v Oregon Health Sciences
9th Circ 

The physician continually criticized the billing practices of the Plastic Surgical head.  This led to a poor report which eventually led to the physician's termination.  The trial court and the 9th Circ agreed that the physician was not allowed to subpoena witnesses at his hearing including exculpatory witnesses.  This was not true due process and the Plastic Surgical head and the University could not show that the physician was terminated for non-discriminatory reasons.  The physician was terminated illegally for protected free speech.  

Medcalf v Coleman
OK. Ct. App.  

An ophthalmologist had sued the hospital and medical executive committee following summary suspension.  The lower court ruled for the hospital.  The appeals court agreed since they state the courts do not have jurisdiction to review staffing decisions made by private hospitals.      

State v Zakalb
W. Va. Supreme Ct.

The Supreme Court ruled that there is a waiver of peer review privilege when the keeper of the privilege, the hospital, introduces peer review documents into evidence. This overturns a prior decision that there must be an formal indication to waive the privilege.      

Sun Health v Myers
Ariz Ct. App.

The courts again upheld the peer review privilege in a malpractice case.  It continues to bewilder me why the lower courts allow the patient to have the information when they know they will be overturned on appeal. 

Tortorici v Goord

 The District Court ruled that quality assurance documents are not peer review documents and are not shielded from discovery.  They are not prepared for decision making and are mandated to be made by state law.     

Maheshwari v Sharp Mem. Hosp.
CA Ct. App.

The doctor has initially given temporary privileges and after a review of his cases both at Sharp and at another hospital had the privileges not renewed.  He was given a hearing on both quality of care and not providing information at the other hospital. The doctor sued and lost since he had been given due process.  The Appeals Court agreed that the revocation was not arbitrary.         Top

Insurance Payment

Holliday v Anthem, Inc.
Indiana Circ. Ct.

Anthem agreed to pay a $41,000 bill to stabilize the dying woman's spine from cancer.  Anthem states they didn't know about the claim (and it doesn't rain in Indianapolis in the summertime).  The patient's attorney is recommending the continuation of the suit for insurance bad faith.  He's not getting any money from the settlement.  He wants money for the "family" for two months of hell they went through worrying about the payment.  The attorney may also then get some money.  

MDs v Independence Blue Cross

A settlement was forged between the Pennsylvania large insurer and the physicians.  The insurer will publish the rules the utilize in their claims and will pay $40 million in higher payments over the next two years.  Aetna agreed earlier to settle and to streamline claims.  They also agreed to pay $100 million for past actions and an additional $50 million in attorney fees.  Independence did not pay anything for past actions nor for attorney fees.  These will come out of the physician settlement and will be capped at $5 million. 

MD v Anthem Blue Cross
Conn. Superior Ct.

A judge has stated that Anthem must stand trial for payment by profiling and not using consistency in deciding medical necessity. The individual physicians are going for a class action by 7000 Connecticut doctors.  This is now before the State Supreme Ct.   

In re Michel K Gavigan
Soc. Sec. Admin Office

Finally, in a case of Medicare fraud based on statistics, a judge was smart enough to determine that Medicare's use of statistical sampling is flawed.

Fraud and Abuse


In the largest false claim action ever, HCA agreed to pay a total of $1.7 BILLION.  This finishes HCA civil liability for all their false claims.  They had previously paid $840 million in criminal penalties and restitution.  This was a qui tam law suit and the whistle blowers got $150 million. 

US v Abbott Labs

Abbott Labs will pay $622 million to settle a marketing ploy.  They gave away feeding tubes to those who ordered large amounts of their liquid food that goes through the tube.   

US v AstraZeneca

The drug company agreed to pay $355 million to settle charges like those of TAP.  They gave medication free to physicians who then charged the Medicare program for the medications.  The company encouraged the physicians to do the illegal billing.      

Guilty Plea

The above AstraZeneca suit not only got the government money but also several urologists who billed the government for the full cost of the medicine.  Dr. Saad Antoum of Holmdel, N.J. and Stanley Hopkins of Boca Raton, Florida joined Robert Berkman of Columbus, Ohio in pleading guilty to defrauding the government.  They face a maximum of five years and $250,000 fine and three years of supervised release.  They may also be removed from the Medicare rolls.        Top


Finnin v St. Barnabas Hosp.
NY App. Div.

The appeals court sent a case back to the lower court to determine whether or not a hospital should be liable for the potential negligence of an ED physician.  The independent contractor physician never told the patient of his status or was there any physician patient relationship prior to the hospital admission. The hospital may be liable for liability under the premise of ostensible agency.    

Zamos v Stroud
CA Ct. App. 

In a most interesting case the 2nd District in LA ruled 2-1 that if an attorney presses on with a meritless suit after discovery, they can be sanctioned and sued for malicious prosecution.  This goes against another case in the same District earlier that stated there could be no suit if there was probable cause at the time of the suit being filed (Swat-Fame v Goldstein 101 Cal App 4th 613)  The current panel ruled that it made no sense to allow a suit to go forward if after discovery there was no basis for the suit.  

McIntyre v Ramirez
Tex. Supreme Ct.

The Texas Supreme Court has agreed that the Good Samaritan Statute applies to ordinary negligence of any physician who sees a patient, not their own, in an emergency if they ordinarily would not be entitled to receive compensation for their acts.  The court rejected the notion that the physician must prove they are not entitled to compensation under any condition.  

Rivard v Three MDs
Case Decided

The Boston Globe has run an article showing both sides of the coin in a monster malpractice case.  The plaintiff is a newborn, now six years old, who has severe retardation due to a birth injury.  The jury gave the plaintiff $21.4 million in damages.  The article talks about good OBs being driven out of practice by these humongous awards versus the sorrow and the needs of the injured and their families.  The patient was post due date and given Pitocin as an outpatient.  The patient wanted a C-Section but the hospital, UMass Memorial, had a policy to reduce the costly C-Sections.  The award was $8.1 million for economic loss and $13 million for non-economic damages, $2 million to the patient and $11 million to the parents.  The State law limits non-economic damages to $500,000 but this can be exceeded by the jury when they see fit.  This means there is no cap.  The economic money is paying for the patient's care in a facility and a wing to the parent's house when the patient infrequently comes to visit.    

Scripps v Superior Ct.
CA Ct. App.

The plaintiffs were patients at Scripps and sued them for malpractice.


IHM v Hawaii Med. Assn.
9th Circ.

The 9th Circuit ruled against antitrust problems between the insurer and physician groups stating that the physician groups may advise and work for their members in non economic take it or leave it contract terms offered by insurers.  The medical society attempted to meet with the insurer and while the meeting was to take place, the insurer acquired another company and the Association sent out an alert about the purchase and the agreement had serious problems, not related to economics.  Five hundred physicians were dumb enough to sign up for the plan despite the warning. Why does that not surprise me? 

US v Brown & Toland 

 The Federal Trade Commission has charged Brown & Toland, the largest IPA in the San Francisco area with price fixing.  The complaint applies to PPOs only.  The Feds want B&T to no longer negotiate contracts for its members and to nullify its past anti-competitive contracts.  The negotiations have been going on for months.        

US v Charity Hospital

The FTC has accused Charity Hospital in New Orleans with improperly billing Medicare $1.8 million.  The feds state that for three years after Charity took over University Hospital it continued to bill in the bought out hospital name.        Top

Medical Information

Garrett v Young
CA Ct. App.

Garrett sued Young for breach of confidentiality under California's Confidentiality of Medical Information Act (CMIA, Civil Code 56).  The physician gave without consent medical information regarding the patient's health, examinations, and planned visits with other providers to her supervisor at work.  The employee had told the supervisor about the rash and itching and asked him where to go.  The supervisor recommended Young. The supervisor used this information to support the patient's termination and disclosed the information to others.  The patient was suffering from job stress as manifested in a rash and itching which could be plainly seen.  The physician admitted talking to the supervisor and stating the above but no exact diagnosis was mentioned.  The Superior Court gave the doctor a directed verdict after the patient's case.  The Appeals Court agreed.  They stated that it would be onerous for the patient to be able to dictate to any healthcare provider who to or who not to disclose information.  Therefore, a provider may disclose without consent general information to anyone.  The information disclosed in this case was general enough to fall under the rules.  Please remember this was all before HIPAA.   

Hannoy v State
Ind Ct. App.

A convicted drunk driver appealed his conviction on the theory that his blood alcohol was drawn in a hospital ED without his consent. The BA was obtained on behalf of the law and not for medical reasons.  The deputy never advised the driver of the implied consent laws not obtained his consent for the BA.   

US v Gonzalez
9th Circ.

The 9th ruled that employees have no expectation of a right of privacy in the employee mailroom.  A package was sent to a fictitious physician and intercepted by a person in the mailroom.  There was a hidden camera taping the interception.  The Court stated that the 4th amendment protects people and not places of employment as opposed to residential property.  The interceptor was convicted of theft of drugs.         Top


California Marijuana Update

The US Attorney has decided to appeal Judge Breyer's sentencing ruling of one day in jail for marijuana cultivation of Ed Rosenthal.  The judge took into account that Mr. Rosenthal was growing the marijuana for the City of Oakland under State Proposition 215.  Mr. Rosenthal was also fined $1300 and placed on supervised release for three years.

A US District judge will decide soon whether or not the Feds may be prevented from acting against a Santa Cruz medical marijuana cooperative.  The judge is sympathetic to the cooperative but realizes that there is no medical need exception to the use and growth of marijuana.  He asked for help from the plaintiffs in this matter.

The Chowchilla Police have not returned marijuana confiscated by them.  The marijuana was for medical use of one patient.  A judge ordered the return of the medication to the patient.  The police state they can not do that since it is illegal under federal law.  The problem with that response is that the meds were confiscated under state and not federal law. 

The US Justice Dept. has asked the US Supreme Court to review a 9th Circuit case.  The 9th threw out a law that would allow the feds to investigate physicians who recommend marijuana to patients and revoke their licenses.  This would be a step between the physician and his/her patient.  The court did state that prescribing but not recommending marijuana is illegal.       Top


Black & Decker v Nord
US Supreme Ct.

The Supreme Court stated that there is nothing in the ERISA law that holds the treating physician applies to ERISA disability.  It applies to regular Worker Compensation and Social Security disability only.  This opinion was unanimous.         Top 


Dollard v Allen
D Wyo.

In a continuation of EMTALA cases the court stated a direct admit is not subject to EMTALA.  The patient was discharged and readmitted the following day with back problems.  There were no violations of screening or stabilization.  This is a regular tort case.        Top


Piedmont Hosp. v Palladino
GA App. Ct.

A Hospital employee was fondling a male patient at the hospital when the patient was coming out of anesthesia.  The hospital and the employee were sued for assault and battery.  The hospital was dismissed since the act was not in the scope of practice of the employee and under Georgia law an employer is not responsible for the sexual misconduct of an employee.        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.