August 15, 2009 Recent Legal News
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US v Tulare Hosp (CA)
Settlement
The Tulare Hospital in California has settled a whistleblower suit with the feds by paying $2.4 million. A former hospital CFO brought the original suit for the hospital arrangements with physicians. The hospital was accused of leasing space and selling land to physicians at markedly below market price. They also forgave debts from physicians. The ex-CEO who did all this is now completing course work to become a compliance officer.
Massachusetts v Boston Clinical
Labs
Settlement
The lab will pay over $600,000 to the state for a settlement on false claims under Medicaid. They will also pay $14,000 to Medicare. They were accused of billing for urine drug tests that were not needed since they had been ordered by an unauthorized persons or for residential sobriety monitoring.
California v Toscano
Sentenced
Lilia Toscano recruited people for unnecessary surgeries. The people were instructed as to their symptoms to fool the physicians or to allow the physicians to play in the fraud. To date 19 people have been charged including physicians and attorneys. Three physicians operated 1037 times on patients in the scheme. Toscano got a sentence of eight years. Top
Gonzalez-Droz v Gonzalez-Colon
1st Circ
The plaintiff is an OB/Gyn who did plastic surgery since 1995. The Puerto Rican medical board issued a ruling that only board certified dermatologists or plastic surgeons could do cosmetic surgery. The plaintiff left PR and went to California where they will let anyone do cosmetic surgery. He lost his license in PR and filed injunctions against various parts of the process. He lost them all since they had taken place two years prior to the filing. A trial could take place on the taking of his license and any financial harm that it caused. Top
Doulgeris v US
MD Fl
Are you sure you want to be an executive. Doulgeris was named interim CEO of a hospital in bankruptcy. During the first two months of his reign, taxes were withheld but not paid. The court stated that he was personally responsible for the payment of $2 million in back taxes. It is a matter of law and not fact that the hospital head is the one responsible for making sure taxes are paid. The CFO reported not to the CEO but to the management company. The CEO signed checks to vendors while he knew or should have known the money was withheld to pay taxes. Top
Cunningham v Aiken Med Ctr
D SC
Cunningham ran a psychiatric inpatient facility was allegedly told by her boss to refuse admissions to the ED and she dutifully relayed that to her staff. She realized this was against the federal EMTALA law and resigned from the hospital. She sued stating she was constructively discharged in violation of public policy. The hospital moved for summary judgment and was rebuffed. The case was then remanded to state court.
Warfield v Bet Israel Deaconess
Mass. Supreme Ct.
Warfield, an anesthesiologist, was dismissed as the anesthesiologist-in-chief of the hospital. She had signed a contract containing an arbitration clause but after her dismissal she sued for discrimination, interference with business and defamation. The hospital stated she must arbitrate. The Supreme Court disagreed. Since the clause was not specific it did not prohibit suit on the defamation cause and therefore all could be sued upon. Another poor piece of work by a hospital attorney. Top
Jace v Contra Costa County
Ca Ct App
Jace was seen at the county hospital for a psychiatric condition. He was examined by three people including a physician who all agreed he was not a danger to himself or others. They were wrong as soon after his release he killed himself. This is not a federal med mal decree and he got his screening. It is difficult to understand why attorneys continue to attempt to make the law something it is not. Top
Fla Regional Med Ctr v See
Fl Dist Ct
Florida is weird and passed a schizophrenic law several years ago known as Amendment 7. This allows plaintiffs in a med mal suit access to almost all peer review material. The hospital fought it under HCQIA and the attorney work product doctrine but lost on all counts. The court did limit the scope stating Amendment 7 is not limitless.
Andres v Providence St. Joseph
CA Ct App
In yet another attempt by a medical staff member to govern by fiat has been quashed by the courts. The hospital has a rule that when a physician is unavailable he/she must have a qualified backup physician. In this case Andres, a cardiovascular surgeon, had his regular backup suspended from the staff at the hospital. He then got another physician who did vascular surgery to agree to back him if he was unavailable. The COS took it upon himself to state that the backup was not qualified and therefore suspend Andres from the staff due to lack of a back up. The COS did not follow the bylaws and take the summary suspension of the privileges to the MEC as required by the bylaws. The COS did not give notice and hearing as required. The hospital and its attorney instead of looking at the idiocy of the COS tried to defend him with significant loss of money and face. The court of appeal took the hospital and COS to task and forbid the removal of Andres until a committee stated the backup was not qualified and Andres was given a full judicial hearing on the matter. The COS overstepped his authority and should be severely punished including removal from office.
Botvinick v Rush Med Ctr
7th Circ
Dr. Botvinick did his anesthesiology residency at Chicago's Rush Medical Center. During his residency he was accused of sending sexually explicit items to a female physician. He denied it and was never disciplined for the problem. After his residency he was hired by a Florida anesthesiology group and later fired after the hospitals would not give him privileges. He sued Rush for giving him a bad recommendation. The trial court and the 7th Circuit both gave summary judgment to the hospital since his attorney overlooked deposing the Florida hospitals as to what information they used to deny his applications. There was a discussion between the Chicago and Florida hospitals but no one knows what was said. To make matters worse he had signed a broad disclaimer protecting Rush from anything disclosed.
Cedars Healthcare v Mehta
Fl Ct App
Mehta, an interventional cardiologist, was suspended and later reinstated with supervision. He went through all administrative processes and then sued for the usual state court items plus defamation. The trial court allowed the suit to go forward and the hospital appealed. The court of appeals stated that the hospital was protected under the state peer review statutes except for fraud and defamation. The plaintiff is allowed to reclaim fraud providing he pleads it with more particularity and can go ahead with defamation as it is not covered under the state peer review statutes.
Kellerman v Virtua West Jersey
Hosp
NJ Ct App
Dr. Kellerman was warned regarding disruptive behavior in 2000 and summarily suspended for 13 days for the same in 2002. In 2006, Kellerman after receiving more complaints against him was told to attend a course or lose his privileges. He did not attend the course and lost his privileges. He applied for a judicial review but when the time came (it had been delayed several times by both sides) the physician refused to appear. The Board felt this was a voluntary acceptance of the loss of privileges. The physician appealed and was refused so sued. He lost in the trial court and again in the court of appeals due to his voluntary refusal to appear at the hearing. He stated that it was a "kangaroo court" but the courts did not agree. He could have appeared and argued his case. I have no idea why any physician would not appear at a hearing knowing that this is his best shot at getting off. Once it goes to the courts HCQIA and the law work against him much more than the judicial review committee would. Top
Ritchie v Krasner
Ariz Ct App
In a case that is sure to stir up problems in the Worker Comp physician community, the plaintiff saw the physician for an IME and signed a waiver that there was no doctor-patient relationship. The injury was a work related back. He was sent by the carrier to the doctor for diagnosis, prognosis and recommendations on treatment. The carrier had a prior diagnosis of cervical and lumbar strain from another physician. Krasner did an exam and an MRI. His report stated that the patient had recovered. Later the condition deteriorated and was diagnosed as a cervical spinal cord compression. He had surgery and narcotics from which he died from an accidental OD. The family sued and won a $5 million verdict of which Krasner was found 28% liable. Krasner appealed and lost. The courts stated that even as an IME he had to duty to follow a reasonable standard of care. Krasner stated that he had no duty as there was no physician patient relationship. To those of you physicians who do IME, I advise you to read this case and decide how and if you want to proceed. It is being appealed to the state supreme court.
Unknown Case Name
California Supreme Ct
The California Supreme Court refused to hear an appeal from a unanimous appellate court that ruled the state's $250,000 cap on non-economic damages could only be over turned by the California Supreme Court. This left the trial and appellate court verdict of limiting the damage award intact. The case was of a patient that went in for a rectal abscess and had a sphincter injury. The jury awarded $750,000 for pain and suffering which was reduced by the appellate court. Top
Yeager v Blue Cross of California
Cal Ct App
Yeager wanted infertility treatments but could not afford them. The California statute states that insurers must offer infertility treatments. She sued Blue Cross. Blue Cross offers it to Yeager's employer but the employer turned it down as too expensive. The courts ruled that the statute does state that infertility must be offered but is silent on what the terms of the coverage must be. There are many such mandates that are state ordered but the details are left blank intentionally. 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.