August 15, 2006 Recent Legal News





Economic Credentialing


Peer Review





Massachusetts v Ribeiro

Mr. and Mrs. Ribeiro of Framingham, Massachusetts were doing liposuction in the basement of their home.  The patient died.  They are being charged with practicing medicine without a license.  It makes no sense to charge that and not add on manslaughter.  

Massachusetts v Taylor

Mr. James Taylor has been charged with healthcare fraud for overbilling Medicare and Blue Cross for oxygen equipment.  The charge against him is he overcharged by $915,000.        

Louisiana v Pou
The Saga Continues

Mr. Foti, the Louisiana Attorney General, is not being held in high esteem for charging a physician and two nurses with killing four patients during Hurricane Katrina.  The autopsy showed high doses of morphine but that is not unusual for patients being kept comfortable.  There are times when giving doses of meds for comfort does cause death.  This is not criminal but reasonable medical practice.  If the physician gave the medication with the intent to kill the patient, it then is murder.  It is highly unusual for a prosecutor in this state to indict prior to a Grand Jury investigation, unless you were up for re-election or other political reasons.  His statements to the press were also a potential problem for any jury pool as they were exceedingly prejudicial.   

US v Kofsky

 Dr. Albert Kofsky of Philadelphia had a business where he purchased meds for pennies and sold them for dollars.  The indictment alleges that some of the patients he sold drugs to were actually only seen by his nurse, his housekeeper with no medical training.  The meds sold were usually diet pills and one patient died but not necessarily from the pills.        Top


Duyn v Hospital, et al

An infant, Duyn, needed a tracheotomy.  The tube was reused and misshaped.  It injured the boy so now he needs a permanent stomach tube for eating.  The question arises should hospitals be using reprocessed instruments.  The Orlando hospital had resterilized the tube although it had a label that stated "For Single Use Only".  Originally, there were only reprocessed devices.  After HIV became a problem and stronger plastics were developed, single use became the norm.  Now with costs high, reprocessing has become the norm.  In a new federal law the reprocessers will need to put their own names on the recycled devices and packaging.  If the item is too small for renaming, they could place a sticker on the chart with the information.  One of the main problems is that patients have no idea reprocessed products are being used on them or that they even exist. 

Hunt v Schwaibold
Georgia Trial Court

In a case to make one think twice about telling patients about a mistake and apologize, Dr. Schwaibold apologized to Hunt after she had the wrong parotid gland radiated for cancer.  He then had to remove the correct gland.  The patient was left with dry mouth and potential gingival problems.  Dr. Schwaibold during his apology told the patient that she should sue.  The medical experts and other extraneous people could not agree on damages and so the case went to trial on the sole issue of damages.  The jury was not told anything about the cause of the damages. This took over two years. The patient asked for $1 million and the physician wants to pay $150,000.  Did the apology make any difference?  I doubt it.    

CA. Consumer Health v Kaiser
CA Ct. App.

In one of the dumbest suits ever filed the California Consumer Health Care Council filed a suit against Kaiser to forbid them from giving the plaintiffs medical records to its attorneys.  The California Code expressly allows this.  They obviously lost but then stated that Kaiser should only give relevant records to the attorneys.  They again lost as there is nothing in the Codes that states this proposition.  Also, how can a HMO decide what is relevant to a law suit and what isn't.  

Abels v Ruf
Ohio Ct. App.

The patient sued the physician and the hospital for med mal and negligent credentialing.  The plaintiff in the discovery phase issued subpoenas to three physicians on the staff.  The defendants and one of the served physicians asked that the subpoenas be quashed.  The trial court refused to quash.  The defendant physician and the hospital appealed.  The appeals court ruled that they had no standing to ask for a quash of the subpoenas, only those served could do that.  None of the three physicians appealed and so their discovery could proceed.  

 McClellan v Patel
D. Or.

After their son died following surgery, the parents sued the physician and the hospital for med mal and administrative negligence.  The hospital gave the physician privileges even after malpractice claims.  The hospital removed the case to federal court and the court stated that since the parents were not seeking anything related to a plan the removal was improper and it goes back to state court with all claims intact.      

Larson v Wasemiller 
Minn. Ct. App.

 The plaintiff sued the physician for med mal and the hospital for negligent credentialing.  The trial court sent the issue of negligent credentialing to the court of appeals and the appellate court stated that Minnesota had not recognized a cause of action for negligent credentialing.  The Court of Appeals punted the issue to the Supreme Court or the legislature.    

Swain v Ohio State University

The University has agreed to pay $7.3 million into a fund to pay for the 24 hour a day care that the patient will need after becoming quadriplegic after medical negligence by the hospital staff.  The settlement gave a $2.2 million annuity to the parents of the patient and an outright $3 million to the attorney.  The plaintiffs had won an earlier $2 million from the physician.  

Bentley v Riverside Hospital
CA Ct. App.

Bentley sued the hospital for doing a nuclear medicine scan on her without asking if she was or could be pregnant, a policy not followed.  She found out later she was pregnant and had it terminated.  She sued for malpractice and lack of informed consent.  The Appeals Court said it was the physician's duty, not the hospitals, to ask about the pregnancy.  

Luettke v St. Vincent 
Ohio Ct. App.

A student nurse injured a patient after doing unsupervised anesthesia on the patient.  The patient suffered a punctured esophagus.  The Court of Appeals overruled the trial court and  allowed into evidence the the hospital policies and med staff rules regarding unsupervised student nurses. 

Ward v Kylander
Mass Sup. Ct.

The patient sued the hospital for an injury allegedly caused by a licensed independent contractor.  The court stated that the hospital had no control over the physician and the patient offered no proof that he relied on a belief that the physicians was a hospital employee.

Sheikh v Lexington Med Ctr.
S. Car. Superior Ct.

Dr. Asif Sheikh went to the hospital for double knee replacement.  He died 17 hours after the surgery.  The jury awarded $30 million in compensatory damages.  The hospital is on the hook for $270,000 and the anesthesiologist, Dr. Gail Capell is liable for the rest.  Bankruptcy Court next stop.           Top


Patients v Sutter Health

Sutter Health has agreed to settle a class action suit against it for overcharging uninsured patients.  Those uninsured that actually paid part or all of their bills will get a refund.   Sutter will also in the future give discounted rates to the uninsured and no collections will be forthcoming unless a top executive signs off on the collection.

California Hospital v Blue Cross
Trial Judge

Blue Cross (Wellpoint) made a ruling that they would pay the physician more if they did colonoscopy in an ASC rather than a hospital.  The hospital association didn't like this and thought it was discriminatory.  The judge thought it was OK since there was no evidence that the rule would change medical opinion.  

US v U California

 CMS has accused the University of California in San Francisco of overbilling the costs to train dental students.  They want a repay of $3.9 million.  The University does not agree but eventually, after they strut and preen, they will pay.

NY v GlazoSmithKline

New York and other states took the company to court charging them with artificially inflating average wholesale prices on Kytril and Zofran.  The company agreed to settle all for $70 million.       Top


Dunn v Washington County Hosp.
7th Circ.

Nurses sued the hospital for a hostile work environment after complaining of harassment by an independent medical provider on the staff.  The trial court ruled for the hospital since the physician was not an employee.  The 7th Circuit reversed and stated that the trial court did not take into account the nurse's work environment regardless f who is causing the hostile work environment.  Back to trial.        Top

Economic Credentialing

Baptist Health v Murphy
Arkansas Supreme Ct.

The Cardiology group was removed from the staff after it invested in a competing venture.  The group sued for an injunction preventing their removal and this has been granted by the Supreme Court.  The rationale was the unique nature of a patient physician relationship.        Top


Hollingshead v Province Healthcare
D. Colo.

Dr. Hollingshead, a podiatrist, signed an agreement with the hospital stating the hospital would not recruit another podiatrist.  After the signing, the podiatrist told the hospital he had medical problems and was selling his practice.  He wanted the agreement so he would not lose value of his practice.  The hospital turned around and hired a new podiatrist that Dr. Hollingshead was bringing in to buy his practice.  The podiatrist sued and the hospital moved for summary judgment.  They didn't get it.  The hospital broke the agreement and must up to trial. 

Wilkerson v U. Michigan
Mich Ct. App.

A female physician complained of harassment and was then her position was terminated and she was unable to get any other position with the U.  She filed suit and won on summary judgment on retaliatory denial.  The hospital disseminated false information regarding the required credentials for a job.  This showed malice.        Top

Peer Review

Feyz v Mercy Hosp.
Mich Supreme Ct.

Dr. Feyz sued the hospital after a peer review restricted the access to pharmacy consult services and not allowing the physician to countermand certain standing orders.  The trial court gave summary judgment to the hospital under the state peer review statute and the concept of judicial non-interference with private hospital staffing.  The court of appeal partially overruled by stating that those actions brought by physicians under the color of discrimination do not need malice as the only way to proceed.  The Supreme Court overturned everything.  They stated that the old law of judicial non-interference is now no longer valid.  There is only immunity to those physicians involved in the peer review process, not the hospital.  Those physicians are also not immune if they act with malice generally defined as knowledge r recklessness disregard of truth or falsity.  The case returned to the trial court. 

Costa v Leavitt
D. Neb

Costa was reported to the NPDB for resignation while under investigation.  Costa had withdrawn his application for staff membership after a quality meeting where three cases were discussed and the MEC had refused the reapplication.  The Bank report stated he resigned while under investigation for issues of competence and professional conduct.  Costa contested the report but the Secretary upheld it.  Costa then sued and the Court agreed with the physician.  There was no investigation.  The QA meeting did not qualify as an investigation.  The minutes of the MEC did not confirm the lack of reappointment was for a competency issue.  Therefore the report to the Bank was inappropriate.       Top


Ferguson Med v Missouri Delta Hosp
D. Mo.

Ferguson Medical Group (FMG), physicians in primary care and specialties, is a competitor of the local hospital in labs, outpatient surgery and other facilities.  Missouri Delta (MD) was accused by FMG of conspiracy to eliminate competition.  They stated that MD had terminated call contracts, withheld coverage, reduced referrals and discriminated against them in recruiting and peer review.  All the above are believable.  The problem was that MD won the summary judgment because FMG chose the wrong relevant market.  The medical group chose the smallest market possible but the court allowed a much wider market; where the patients could go, not where they went.  The narrow market area excluded other providers that had the same services.         Top  


Agee v US
Fed. Claims Court

Dr. Lawrence Carter Agee sued pro se and sought money and injunction against the US for revocation of his license in Vermont and California.  He lost his hospital privileges due to a request for six months of psychiatric counseling.  This was reported to the NPDB and both states revoked his license.  He sued the government since the Bank is a governmental agency.  He lost.  The states and not the feds took away his license and that did not constitute a takings for public use without just compensation.  The Court of Claims has not authority to grant equitable relief such as an injunction to prevent the loss of license.        Top


SEIU v Sutter
Superior Ct.

A Sacramento Superior Court judge ruled that Sutter's proposed new hospital extension could not go forward because of environmental impact studies did not include traffic, parking and air quality.  The union sued during a labor negotiation and until the extension is built will lose potential jobs.  They are so stupid to think this is a victory. Their members are the losers.         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.