August 15, 2003 Recent Legal News

Ventura has a Separate Medical Staff


Economic Credentialing

Patient Confidentiality

Fraud and Abuse

Murder Charge Against Nurse Dropped


Product Liability


Peer Review


Ventura has a Separate Medical Staff

The judge in the Community Hospital case in Ventura, California, has made the most important ruling.  He states the medical staff and the hospitals are independent entities with overlapping responsibilities to the patients.  He allowed the suit to go forward by the medical staff against the hospital on their conversion of the $250,000 medical staff fund and the unilateral code of conduct propagated by the administration and Board. The judge also stated that the New Hampshire Exeter case, that was decided on a twenty year old paper, was not precedent for California law. He did give something to the hospital by stating that most of the other claims of interference with business should be filed by the individuals involved since it doesn't effect the entire staff.  The attorney for the hospital states that even though the judge ruled against him on the two big issues, he is looking forward to a motion for dismissal.  He sounds in this and prior articles more like a divorce lawyer than a business lawyer.  However, he is right that the case will go forward to the State Supreme Court on the separate medical staff issue providing the hospital's and the plaintiff's money holds out.       Top


Neb. v Javed

Nebraska is going ahead with the revocation of Dr. Tahir Javed's medical license.  The physician has been charged with negligence in overseeing his employees.  This caused a major epidemic of Hepatitis C when the same needle was used for patients in this oncologist's office.  Dr. Javed has fled the scene and is in his native Pakistan.   

Finucan v Maryland Board
Md. Ct. Spec. Appeals

The doctor, a FP, was accused of having sex with a patient.

Economic Credentialing

Walborn v UHHS
Ohio Superior Ct.

Dr. Walborn applied for privileges at the hospital.  He was denied, not on quality, but because of a material financial relationship with a different institution.  The court stated the hospital board can determine the criteria for admission to the staff, as long as they are equal across the board.  This policy change was a means of protecting the hospital.  I certainly hope the physician challenges the court by an appeal.  Ohio apparently has no law on point but is considering this in the wake of multiple specialty hospitals in the state.  This would be a good case for the Ohio Medical Assn. and AMA to pursue, but I doubt that they will. They continue to need spine transplants.     Top

Patient Confidentiality

Shaddox v Bertani
Ca. Ct. App.

Shaddox, a police officer, visited Dr. Bertani, DDS office and had a wisdom tooth removed.  Dr. Bertani's associate gave Shaddox a prescription for Vicodin which was refilled at least once.  When the undercover cop came to the office in full uniform to ask for more Vicodin but was refused, he questionably attempted to intimidate the doctor.  Bertani then called the police and reported Shaddox to a superior.  Shaddox was disciplined and filed a medical privacy suit against the dentist.  The trial and the Appeals Court through it out since the California Medical Information Act covers this situation.  The Act states that disclosure is justified when it is authorized by law.  There is law on this subject which encourages reporting of law enforcement officers.       Top

Fraud and Abuse

US v Dow, MD

The government has accused Dr. Dow of billing for consultations when he was doing regular visits.  This settlement has cost the doctor $185,000.  The physician has also entered into a corporate integrity agreement which will cost a significant amount more to monitor his practice.  The difference is between a consultation and a regular visit is a consultation is from another doctor for an opinion on a problem, it is not for continuing care, unless that care is for the problem. An example is a prostatic mass sent to an urologist.  It is a consultation for the urologist to evaluate the mass and set in motion the steps needed for that evaluation.  The other alternative is a transfer of care which rarely happens.  This is when the patient is sent for the new doctor to take over the complete care of the patient, not just to see the patient when the physician is "on call".

US v Tenet

Tenet has settled its part in the unnecessary surgery allegations at their Redding Hospital.  They paid $57 million, the larges fine ever for single hospital fraud.  The settlement was in regard to the possibly unnecessary cardiac procedures performed at the hospital and their part in it.           Top 

Murder Charge Against Nurse Dropped

People v Williams, RN
Mo. Superior Ct.

The DA dropped the first degree murder charge against Richard Williams, RN.  He had been accused of poisoning and killing ten people at a local Veterans Hospital.  He was charged a year ago.  The reason for the dismissal was a problem with the test used to identify the poison.  The DA stated that he can no longer reach the necessary burden of beyond a reasonable doubt.  He did want to continue the prosecution but was just unable to do it.  The FBI report stated that the toxin found in the victims also showed up in the control tissues.  The trial was scheduled for October and Williams was released.        Top


Franciski v U. of Chicago
7th Circ.

Franciski is the mother of Keegan Evanauskas, an infant with multiple congenital anomalies.  While Keegan was hospitalized, Franciski and the father were, on multiple occasions abusive to the staff of the hospital.  At one point they had to escorted from the premises.  When Keegan died they sued for multiple causes including intentional infliction of emotional distress.  All charges against the University were dismissed by the District Court.  Franciski appealed the intentional infliction result.  The 7th Circuit stated that the conduct of the parents were so bad that anything the University would have done paled in comparison.  The dismissal was upheld. 

Land v Cigna
11th Circ.

The patient sued the HMO due to their not reviewing a nurse's decision for outpatient and not inpatient care for antibiotics for an infected finger.  The finger was eventually lost.  The 11th Circ overruled the District Court and stated that malpractice is not preempted by ERISA.    

Doe v Arts
NJ Super. Ct.

The plaintiff had an HIV test that came back positive.  He was referred to other physicians and eventually to a therapist for potential suicide.  The therapist repeated the HIV test several years after the initial test and it was negative. The jury awarded $300,000 and stated the original misdiagnosis was the proximate cause of all the injury. 

Allen v Pacheco
Colo. Supreme Ct.   

This case is actually against Kaiser and their arbitration clause.  The court threw out the arbitration since it did not conform to Colorado law.  

Murillo v Seymour Ambulance
Conn. Supreme Ct.

Murillo is the sister of a patient who witness several unsuccessful attempts at starting an IV in her sister's arm.  This caused her to faint and an injury.  The trial and appeals court all agreed that there was no duty to Murillo.  There was needs to be forseeability plus was there public policy on the issue.  Here there was forseeability since Murillo stated she was feeling faint.  The second prong is the public policy and the policy is there should be no liability since the duty of the defendants was to the patient not the sister.  

In re Lieverta
Ohio Trial Courts

In an unusual case several people are suing Dr. Lieverta for prescribing OxyContin causing harm to their family.  This is under a law of Ohio which allows third parties to recover for damages caused by distributors of controlled substances. They are suing the physician for emotional distress and economic damages due to his prescribing the drug.  The physician has pled guilty to seven felony counts of selling the drug and is currently in prison.  

Gilmore v Jankowski
MI Ct App

The patient saw the physician ENT specialist for sinus problems and had a sinus "polyp".  Surgery was recommended but the insurance carrier demanded a second opinion.  The second opinion said there was a non-malignant growth and the third ENT removed the growth causing loss of smell.  The suit was should the first ENT diagnosed the tumor earlier and done the surgery earlier would there still be loss of smell.  The plaintiff's expert could not tell how big the tumor was when the patient saw Dr. Jankowski.  Since that could not be ascertained, there was no way to determine if the tumor had grown and if earlier surgery would have led to a different outcome.  The actual time differential was only several months.  The courts stated that proximate cause could not be proved. 

Scripps v Superior Ct. San Diego
CA Ct. App

 In a med mal case the plaintiff asked for all incident reports while the patient was hospitalized at Scripps.  Scripps responded that there were reports but that came under the hospital peer review and attorney client privilege.  The trial court granted the plaintiff motion for the records and Scripps appealed.  The appeals court overturned the trial court.  The rationale was that the reports were not for risk prevention but the dominant purpose was for attorney review.  Scripps is self insured and has in-house counsel.

Conners v Northeast Hosp.
Mass. Supreme Ct. 

 Conners worked on the premises owned by the hospital.  She fell and was injured.  She sued the hospital for negligence and won $183,000.  The hospital stated they should only have to pay $20,000 due to a state law which caps liability for a charitable corporation.  The courts agreed with the hospital.  The courts make the usual public policy statement to not take into consideration that hospitals of today are not the hospitals of yesteryear.  The hospitals today have the opportunity for insurance which was not available in the past.  The court also stretched to the point of severe laughing the concept of charitable purpose by stating the hospital was charitable because although it received almost no charitable funds, it served the public. It isn't called the People's Republic of Massachusetts for nothing.  

Duncan v Scottsdale Imaging
Ariz. Supreme Ct.

 Duncan was scheduled for an MRI and told the people at the imaging place that she would not accept Demerol or Morphine for sedation.  They lied to her and then gave it to her anyway.  She had a bad reaction.  Duncan originally filed a med mal claim and a battery claim.  She asked that only the battery claim proceed.  The imaging place was happy to oblige and then wanted to characterize the battery claim as med mal. The trial court agreed with the imaging place and the certain appeals followed.  The Supreme Court took notice of whether the battery was battery and whether the state law said it wasn't battery.  The court stated the battery claim was battery by following the California Cobbs v Grant case.  The court then turned to the state law and overturned it allowing the case for battery to go forward against the imaging place.         Top  

Product Liability

Brandt v Boston Scientific
Ill. Supreme Ct.

Brandt had a urinary incontinence sling placed and had complications secondary to the sling.  She sued under negligence, strict liability and breach of implied warranty.  The lower court dismissed the claim since they were selling services and not medical devices.  The Supreme Court agreed and stated that the sling was incidental to the transaction.  The Court also noted a split in other jurisdictions on this issue.  They believed there is a national trend toward these products being only incidental to the services rendered.  The Court also stated that when one looked at the hospital bill, the sling was only a small fraction of the total bill.        Top


Gil v Hosp. Lopez  

In yet another case from Puerto Rico, the courts have consistently thrown out all EMTALA claims that sound in malpractice.  In this one, the patient was seen in the ED, admitted but not seen by a specialist until the next day.  There was no injury except for several hours of not having the bowel obstruction repaired.        Top

Peer Review

In re Vora
SC Supreme Ct.

The Supreme Court of South Carolina overruled the lower court and let stand the hospital's decision to suspend the privileges of Dr. Vora.  On reviewing the decision of the court, I can understand the position and the overturning of the lower court decision to allow the doctor back on staff. 

Ghanem v Presbyterian Hosp
Ca. Ct. App.

Dr. Shahram Ghanem was a cardiologist at the hospital for a long time when the hospital required a signature that he had been counseled by his behavior.  This was done but he continued to be written up about his behavior over the next several years.  He was then found to date a progress note for the day following when it was made.  He lost his privileges and appealed to the JRC. The JRC found that the MEC's recommendation was reasonable.  This was affirmed by the Board.  The decision was appealed to the courts which also sided with the hospital.  The hospital stated that hearsay is allowed in the hospital setting.  The court stated that there was sufficient evidence that he deliberately falsified the date on the report.  The court lastly found that procedural due process had been granted. 

Skinner v Mt. Pleasant Hosp
SC Superior Ct.

Skinner sued the hospital for defamation and won a jury trial verdict of $30.2 million. The lower court judge tossed the verdict and stated in was based on emotion and not facts.  The judge's decision is being appealed to the South Carolina Court of Appeals.  The case centered on the hospital risk manager falsely accusing Skinner of stealing a hospital heart monitor and sabotaging the medical offices of Skinner.  The actual verdict was $250,000 for loss of patient lists, $10 million in actual damages, $10 million in punitives for defamation and $10 million for negligent supervision of the risk manager.  The hospital also terminated his contract to open and run outpatient clinics for the hospital after Skinner complained about the office conditions and a nurse which were investigated by federal and state agencies.  Skinner states the hospital has systematically sabotaged his ability to get other positions.           Top


Northport Health v Owens
Ark. Ct. App.

Two employees sued the Health System after being fired.  They were accused of misdeeds by their fellow employees to the supervisors.  The fired employees sued the System and their co-workers.  One of the plaintiffs won money in the trial court and the verdict was appealed.  The System attempted to say that the law requires reporting so there was no publication of the defamatory statements.  That did not fly since the System failed to do procedural appeals prior to trial.  Sounds like the System ought to hire different attorneys.   

Wash. Hosp. v DC Dept. Emp. Svs. 
DC Ct. of App 

Thielke was hired to work for the hospital.  Prior to starting work he was required to undergo inoculations including MMR. Two days later he had a serious complication from the inoculation with multiple subsequent problems as well.  He eventually applied for permanent disability and the DC Department of Employment Services granted the application.  The hospital appealed.  They lost since the inoculation was deemed to be part of employment since he would not have received the inoculation "but for" the employment.  There was also a causal relationship between the inoculation and the later injuries.      

Carter v CA Dept. VA
Ca. Ct. App.

 Carter, a nurse at a VA nursing home, was sexually harassed by a resident of the VA nursing home.  She complained to her supervisor about it and the resident was counseled.  The situation did not change.  Carter took several stress medical leaves due to the harassment.  She also filed a complaint with the DFEH who issued a right to sue letter.  No suit was filed because Carter was threatened with termination if she filed suit.  The trial court jury gave damages to Carter since the VA did not stop the harassment.  The Appeals Court reversed since there is no rule that the VA has a duty to protect employees from harassment from nonemployees.          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.