August 1, 2010 Recent Legal News

Peer Review

Fox v Good Samaritan
USDC Ca

Yep, the case that won't die hasn't.  Fox, a pediatrician, refused to get someone to cover him at the hospital.  He was let go and this was many years ago.  He continues to sue the hospital and continues to lose most of the time.  This one he is suing for reversal of his last loss.  The hospital on the eve of the trial woke up and said they are covered under HCQIA and therefore want attorney fees.  The judge did not allow either side to win.  The prior loss stood and since the the court believed the hospital was so stupid in not claiming HCQIA immunity in the past they were not allowed to claim attorney fees now.

Small v Schauermann
Ca Ct App

The physician was on the staff of a hospital for 23 years and retired from medicine.  The next year he decided to return to practice but at a different hospital.  The letter of recommendation from the first hospital stated that basically he was a bad physician and he could not be recommended for staff.  The physician then went to a new hospital but did not sign a waiver from the first hospital specifically related to the new hospital.  The first hospital refused to send a letter.  The physician sued the first hospital and members of it's staff for libel and unfair business practices.  The court of appeal denied the defamation because of the statute of limitations but allowed the other causes to go forward.  One wonders why the attorney or the physician had the time lag.   

Baldwin v Shands
Fla Ct App

 Baldwin had his larynx injured during surgery and when he was under anesthesia.  He is suing for med mal the anesthesiologists and wants the peer review records of the case.  The hospital did not turn them over stating they had reviewed the case and there was no malpractice.  The judge stated that the hospital can not decide whether or not there was malpractice and they need to turn over the records as per Amendment 7.

   Ryskin v Banner Health
D Colo

The physician sued the hospital to compel production of peer review documents in his case.  The physician was under peer review and wanted the minutes of the Credential Committee and the MEC.  The physician contends his employment termination was unlawful and he needed the records to prove his case.  The court stated that the hospital had shown privilege and the case turned on did the physician prove waiver.  The court agreed with the physician on both his waiver issues.  The first was that he was denied due process so the hospital could not claim immunity and the second was that the hospital had released other privileged information so the hospital waived its right to privilege.  The requested documents are to be released to the physician for purpose of discovery not necessarily for admission. 

Schneider v Flood
Virgin Islands

The Court sided with the physician against the hospital and granted a restraining order forbidding the hospital from filing a report to the NPDB.  The court also sided with the hospital allowing it to have hearings on the matter.

Johnson v Grays Harbor Hospital
9th Circ

In 2004 Johnson was summarily suspended from the hospital.  He had quit the hospital medical staff a year earlier but still practiced at the hospital.  He was not given a hearing and the bylaws did not require a hearing.  In 2006 he reapplied for the staff and was turned down.  Again there was no hearing.  The bylaws gave him a hearing but when he sued he sued for no hearing due to discrimination and this is not in the bylaws.  He attempted to sue for discrimination but the hospital is a non profit and not a state actor so he lost again.  This case never even made it to oral arguments.

Vranos v Skinner
Mass App Ct.

Vranos, an Ortopedic Surgeon, was summarily dismissed from Franklin Medical Center.  He sued the physicians involved and the hospital for defamation.  The lower court threw out all the charges except two defamation.  After discovery finished the two defamation counts were dismissed by the lower courts.  The court of appeal reinstated almost all the counts.  The dispute goes back to 49 members of the Department of Surgery signing a memo questioning Skinner and others to lead the Department.  There was also shouting between Vranos and others over policy dictated by the Department head.  The Department head reported "falsely" to Skinner that he was physically abused.  This led to the summary suspension.  He was denied all due process.  This is a great case as to how a hospital gets into trouble by not allowing due process.        Top

Employment

Peachtree Fayette v Turner
Ga Ct App

Turner left the group after signing a restrictive covenant not to practice within five miles from any office of the group.  He set up office and was sued by the group for being within the five mile radius.  The problem was the group office was one where the physician never practiced and the group did not use anymore.  Since this was illegal the entire covenant was illegal.

Gaalia v Citizens Medical Center
SD Texas

The hospital excluded a group of cardiologist from the hospital since they did not participate in the ED coverage.  The physicians contended that their removal was because they referred their cardiac surgeon to a surgeon not on the staff.  They sued under both the Texas law and the anti-kickback law.  The problem was someone did not read the law since neither give a private right to sue.  The case was tossed.        Top

Medical Board

Texas v Arafiles, Jr.
Filed

What goes around comes around.  He is finally getting what he deserves.  Dr. Rolando Arafiles, Jr., the physician who got the two nurses from his hospital in trouble is now in trouble himself.  The nurses turned him in and then were brought up on charges before the state.  This was based on the physician pulling strings.  The two nurses were wrongly fired by the hospital.  Dr. Arafiles is now up on nine charges which include tampering with witnesses.  The physician had been disciplined by the Board previously.  He and the hospital are also being sued civilly by the two nurses.  The hospital was fined $15,800.

Michalowski v Head
D Me

The physician sued in federal court for a TRO against the medical board for suspending her license based on her use of narcotics.  The court would not intervene in an ongoing state action.  The court also stated that it was unlikely that she would be a winner on the merits of the case and there were no extraordinary circumstances present.

Gonzalez-Droz v Gonzales-Colon
DPR

After having his license revoked the physician sued to have it reinstated.  The court said the medical board is immune from suit under the 11th Amendment since it was a state actor.  The members were also immune since they were quasi-judicial functionaries and therefore entitled to quasi-judicial immunity.       Top

Fraud

US v People
Filed

The feds have charged 94 people including medical of fraud.  The feds raided Baton Rouge, Louisiana, Detroit, Houston, Miami and New York for the arrests.  The raids were on independent schemes and show how prevalent Medicare fraud has become since the government does not prospectively review claims. 

Connecticut v Collins 
Investigation

 The state AG is investigating two charities set up by Dr. Tedd Collins to help a patient get a bone marrow donor.  Dr. Collins is being investigated in Kentucky for possible fraud in business ventures.  A Florida paramedic has claimed he gave money to Collins and then the money and Collins disappeared.  Dr. Collins is a PhD in Microbiology and not a physician.  About $11,000 deposited into PayPal for a potential transplant seems to be missing.

US v Camp
Arrested

Four people have been arrested in connection with billing for unsupervised speech therapy.  The four all worked for The Center for Bilingual Speech and Language Disorders in Miami, Florida.  This is the beginning and more arrests are supposedly coming.      Top

Malpractice

Long v Vi
Filed

Monica Long had a mammogram that was abnormal.  She then had a biopsy at Cheboygan Memorial Hospital and it was read as DCIS.  She had a partial mastectomy and radiation therapy.  Later she found that the pathologist who only reads about 50 breast slides a year made an error and she had not ever had cancer.  This is a growing problem with needle biopsies and small path specimens.  The pathologist sent the slides to a nearby hospital where a board certified pathologist concurred with the diagnosis.  When asked at deposition why he had not sent the slides to a large center for review the answer was money.  The hospital has to pay for second opinions and the hospital the specimen was sent to did not charge.    

Tarpon Springs Hospital v Reth
Fla Ct App

The patient died shortly post operative and the family sued the hospital stating that the hospital was required to have an anesthesia department and have adequate numbers of qualified anesthesiologists.  The court said there is nothing that demands a hospital have a non delagable duty to provide non negligent anesthesia services.  The lower court had granted the plaintiff a new trial after the jury had ruled for the hospital.  The appellate court sent the case back and ordered a directed verdict for the hospital.   

DeVries v St. Joseph Hospital
Filed

Max DeVries weighs over 300 pounds and was sedated for neurosurgery when he rolled off the OR table hitting his head.  His head had been previously operated on and part of his skull removed to allow for swelling following a stroke.  After the fall he died.  The suit accused the hospital of not having the correct and safe equipment to be operating on massively obese patients. 

Hoffmann v Wisconsin
Wisconsin Supreme Court

 Dr. Hoffmann along with the state medical society sued the state for taking the medical malpractice funds for general use.  The Supreme Court stated that the state did not own the funds and the taking was illegal.  The money was in a irrevocable trust for the payment to patients. This will cost the cash strapped state over $200 million. The case now goes back to the lower court to determine the interest owed and when the money is to be paid back.  The legal fees may also be litigated.  The state is vindictive and states that the money will be paid back out of funds that would go to pay physicians.  This means less physicians and less access for state Medicaid patients.  The fund was flush when the money was borrowed by the state but has performed poorly since then and needed to borrow money to stay afloat.  That cost the fund an additional $2.5 million in interest that now falls to the state to repay. 

Cantu v St. Joseph Hosp
To Be Filed

Four young people who in a car accident due to a tire blowout.  Two died, one a boy died the next day at the hospital and the hospital told the family of Abby Guerra that she had died.  Her friend Marlena Cantu was supposedly in critical condition at the hospital.  The Cantu family spent a week day and night with the child and then were told that dental records revealed that their daughter had been the one that died and the person they have been sitting with was actually Abby Guerra.  It seems a shame to have notified families prior to the actual determination as to who was who.         Top

Privacy

People v South Shore Hospital
To Be Filed

South Shore Hospital in Weymouth, Massachusetts, has stated that information that was shipped for destruction has been lost.  The information was on about 800,000 people.  The hospital states that the information was encrypted and they are sorry.  They will be sending letters to all involved and will now do onsite destruction of information.  There is no talk about credit checks.        Top

ADA

Hermans v Southern New Hampshire Hosp
Settlement

In a case not seen very often the hospital had to pay the patient $5000 for not having an interpreter for the hearing impaired.  The case was to prosecuted by the federal government when it was settled.   

US v RiteAid
Settlement

RiteAid Pharmacy has agreed to pay the feds $1 million to settle HIPAA violations.  The stores were videotaped disposing of prescriptions and labeled pill bottles containing individual's private medical information in industrial containers accessible to the public.         Top

Insurer

TheraMatrix v Blue Cross of Michigan
Verdict

The jury voted that Blue Cross Shield of Michigan must pay the physical therapy company of Pontiac, Michigan $4,5 million.  The therapy company sued for breach of contract and interference with business for its services with Ford and Chrysler.  The Blues did a negative campaign against the therapy company in order to get the PT business themselves.        Top

Healthcare

Virginia v US
USDC

The USDC refused to throw out the case by Virginia against the US regarding Obamacare's ability to tax people against their will for healthcare.  The judge ruled that this has never been litigated in the past and he needs to hear the case on its merits before making any decision. 

Residents v Florida
USDC

A judge refused to allow a measure on the November ballot in the state that would have constitutionally allowed the state to not allow any participation in any health insurance exchange that compels people to buy insurance.  The judge stated the proposed constitutional amendment was manifestly misleading.              Top

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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.