December 1, 2006 Recent Legal News




Peer Review


Medical Marijuana



Panzica v Lloyds Pharmacy
British Court

Ms. Panzica, a priest and attorney, was working in England to set up a consulting firm.  The pharmacy gave her a massive overdose of a drug which caused many physical and psychological problems. The pharmacy was following an erroneous prescription from a physician. She has settled with the physician and is now suing the pharmacy for $9 million.  This is due to the failure of the consultancy that she blames on the drug overdose that the pharmacy should have caught.  She is now living in the US and is awaiting the result of the negotiations with the pharmacy or the ruling of the judge.  

Stone v Palms W. Hosp
Fla Dist. Ct.

A patient sued the hospital and the on call physician for malpractice.  The on call was an independent contractor.  The lower court ruled for summary judgment for the hospital.  The higher court overruled stating the claim was a factual issue for the jury to decide.

Svindland v A. I. Dupont Hosp.
     SD Pa

The plaintiff sued the hospital for negligence including negligent credentialing.  The court ruled that there was no malice or bad faith so the hospital gets summary judgment since the credentialing is protected under peer review.  

LeBron v Gottlieb Hospital

 The attorney for the patient born with cerebral palsy is challenging a less than two year old law setting non economic damages in Illinois at $500,000 for physicians and $1 million for hospitals.  The law approved by the legislature needs to be challenged in court to make sure it is legal.  It will take a year or two to make it to the Illinois Supreme Court and it is possible that there will be more Republicans on the bench at that time who would vote for the constitutionality of the law.

Brown v Bailey
Mo. App. Ct.

 The patient was admitted to the hospital with head trauma.  The on call neurosurgeon had signed out to another neurosurgeon who did not have privileges at the hospital.  This was done without notification to the hospital.  There was a delay in the transfer to another hospital where the now on call neurosurgeon worked.  The patient died.  The patient sued the original hospital and the original on call physician.  The jury awarded $400,000 to the children and apportioned 50% to the hospital and 50% to the original on call physician.  This was appealed by the physician and he lost since the on call physician does not need a relationship with the patient for negligence, the physician does owe a duty that he will reasonably foresee that he may be called to the hospital to see any patient. The patient's expert had stated that "but for" the delay the patient would have lived and the standard of care was breached.   

Velez v Orange Park Med Ctr.
Filed Florida

The family of the patient who died after he went to the hospital for a sore ankle and was admitted for a blood problem.  He developed abdominal pain and was treated with versed and morphine.  He died in respiratory failure.  The next thing is a potentially falsified DNR by the hospital.  The family states they had never signed one and the signature on the DNR does not match the signature of the patient's son who allegedly signed it.  It sounds like it is only a matter of the size of the check. 

Backman v US

A patient who states she was operated on at the Jacksonville Naval Hospital with contaminated instruments.  In the past year about $71 million have been lost by the hospital on the same issue.  She had an umbilical hernia fixed at the hospital and an hour after returning home after the outpatient procedure received a call from the physician stating that someone broke protocol and contaminated instruments had been used.  All tests to date have been negative for any infections.

Bailey v DC

Bailey was at a dialysis center and had a cardiac event.  An ambulance was called but did not arrive for 90 minutes.  The patient died upon reaching the hospital.  The family contends that the patient would have survived if the patient had arrived in a timely fashion.

Hymel v Blue Cross
La. Ct. App.

 Hymel won a $2.1 million verdict against Blue Cross in the lower court for denying a scan that would have discovered her spinal tumor.  Blue Cross appealed and not only lost again but the verdict was increased by $213,000 due to too low a future medical injury damages.  The suit also denied Hymel's attorney an additional $780,000 in fees.  This is one reason why insurers should not be denying procedures asked for by the physicians.   Top 


LA v Kaiser

As mentioned in the last issue of the LA attorney is cracking down on hospitals for patient dumping to skid row.  The first hospital to go to court is Kaiser Bellflower.  This will be a criminal prosecution for false-imprisonment and dependent care endangerment. There will also be civil suit for unfair business practices.  The city is seeking an order to forbid all Kaiser medical facilities from dumping patients on skid row or impose financial sanctions if Kaiser violates the order. The charges are from a video tape of a woman being left on skid row by a taxi and wandering aimlessly around the area.  She eventually fell and suffered a significant injury.  The ACLU is going to file a separate suit on her behalf.  If convicted Kaiser would be placed on probation that would limit its behavior and contain penalties.  The conviction could also affect the institution's bond ratings.  

US v Omnicare

Omnicare, another HMO, has agreed to pay almost $50 million to the US and state governments for settlement of charges of illegal pharmacy switches to avoid the caps on pharmacy charges.  This is the same company that about one month ago paid an additional $40 million for settlement of nursing home fraud. 

Washington Legal Foundation v FDA

The group has re-filed a case in federal court against the FDA to allow terminally ill patients access to non FDA approved drugs.  The court had previously dismissed the suit but a appeals panel reinstated the matter.  The FDA states that the drugs are already available through the "compassionate use" program.  

Patients v HMOs
Conn. App. Ct.

HMOs were told they must tell the public how they spend the state's money to care for the low income patients.  The rationale for the suit was that the HMOs are paying physicians so little that they will not see the indigent patients.  The HMOs also lost in state court on the same issue.  This will now go the Supreme Court.    

Physicians v Insurers
Mo. Superior Ct.

The insurers lose again.  This time it is the physician plaintiff that contend that the insurers are conspiring to suppress payments to physicians.  The suit accused the insurers of antitrust and monopolistic behavior to not pay or negotiate reasonable rates.  The insurers wanted individual arbitrations as they did n the Florida case but were refused there as well.  The issue of arbitration will be appealed to the Missouri Court of Appeals.   Top


US v University of New Jersey

The notorious school had been given a monitor to oversee its compliance with a settlement agreement.  The monitor found that administrators, physicians and others were politically connected and getting money for not showing up to work.  The monitor ordered the firing of three physicians and the demotion in pay for 10 others.  The reason for the problem was the lack initially of cardiac procedures and the fear that the school may lose its ability to perform the procedures.  It gave no-show jobs to cardiologists to get their business.  There is also a whistleblower suit against the University.

US v Tenet

In yet another settlement with the feds, Tenet has agreed to pay $80 million to the IRS for past fiscal years.  Thanks to Tenet, the fraud recovery of the Justice Department was surpassed the previous high of $2.1 Billion by about $1 Billion.  Tenet accounted for almost 1/3 of the total. 

US v Larkin Hospital

Larkin Hospital in South Miami has agreed to pay $15.4 million to settle state and fed claims for fraud.  The hospital was accused of paying physicians illegally to bring patients to the facility for unnecessary treatment.  In a huge spin the physician owner of the hospital and the one paid along with his brother $70,000 a month to bring patients to the hospital stated that the law suit has been dismissed without any admission of wrongdoing.  He stated that the in spite of the millions to be paid the allegations are false.  It is interesting that one of the original owners of th hospital was the same person who paid $14 million for the same allegations in Chicago in 2000.  He is James Desnick.        Top

Peer Review

McLeay v Bergan Mercy Health
US Supreme Ct.

McLeay is a physician who was suspended by the hospital.  He sued for damages and reinstatement.  The Nebraska Supreme Court stated that HCQIA applied and that the physician did not overcome a presumption of the furtherance of medical care just by showing a wrong conclusion.  The use of expert witnesses against the hospital will not rebut the presumption of furtherance of medical quality.  The issue of equitable relief was not affected and could go forward.  The US Supreme Court would not hear the Nebraska case. 

Shah v Palmetto Health

Dr. Shah sued the hospital after a disciplinary action.  The hospital removed the case to Federal Court because the plaintiff mentioned HCQIA.  The plaintiff had only stated in his complaint that HCQIA did not apply.  After the removal the plaintiff took out any mention of HCQIA and then the case was remanded back to state court.  The court stated that the mere mention of HCQIA did not give rise to federal jurisdiction. 

Verma v Jefferson
ED Ark

Dr. Verma, an Indian male physician, was the employed associate medical director and was replaced by a white female physician.  Animus reigned and he was fired.  He sued in federal court for discrimination and the usual torts.  The hospital asked for summary judgment but got refused.  The physician pled sufficient facts to overcome the breach of contract, civil rights, retaliation and antitrust claims.  That hospital should make a settlement offer to the plaintiff.  If they lose any of the above causes of action, not only will they lose a significant amount of money in attorney fees and a payment but more importantly will look terrible in the press.  

Webster v US
Fed Claims

Webster was in the Air Force and sued to get judicial review of a decision to take away her ED privileges as well as restricting her practice to primary care.  The Court stated lacked jurisdiction but if it had jurisdiction the physician claim would be dismissed since a medical license is not property as defined by the 5th Amendment.      Top


Herman v Kratche
Ohio Ct. App.

A patient sued a physician and the clinic for releasing her medical records to her employer without her consent.  She claimed invasion of privacy, unauthorized disclosure, and intentional infliction of emotional distress.  The doctor and clinic go summary judgment and the plaintiff appealed.  The higher court ruled that the claim of unauthorized disclosure and invasion of privacy were legitimate but not the emotional distress. The clinic had a fiduciary duty to the patient and breached that duty by sending non work related information to the employer.  The invasion of privacy issue should be determined by a jury.  The emotional distress issue showed no evidence outside of her own testimony that the distress was severe and debilitating.        Top

Medical Marijuana

San Diego v California
Ca. Superior Ct.

In a lower court preliminary opinion San Diego and two other counties were rebuffed in an attempt to allow them to not follow California law on medical marijuana.  Proposition 215 allows California residents to possess marijuana for medical reasons.  The counties wanted to follow the federal law which states that marijuana is not legal for medical reasons.  The judge is now considering oral arguments and will issue a final decision at a later time.  The counties will appeal as would the medical marijuana proponents if they would lose.  The counties do not want to issue the required medical marijuana card to those with physician recommendations.  They say the law should have been put to the voters as it changes Proposition 215.  The State did not agree. 

Wright v California
Ca. Supreme Ct.

 The California Supreme Court again affirmed the State's right to regulate marijuana under Proposition 215.  Wright had over over a pound of marijuana in his truck when he was arrested.  He was charged with possession for sale and transportation.  A physician testified that he had recommended the drug for the patient in larger quantities than normal since the drug was eaten and not smoked.  The judge said Prop 215 did not apply since the quantity was too large and he was transporting it.  He was convicted and appealed.  The Court did not overturn the conviction but ruled that Wright was entitled to an instruction on medical marijuana.      Top


Martinez v Porta
ND Texas

The patient filed a EMTALA and malpractice action against a hospital.  As part of discovery the plaintiff asked for the medical records of patients who received cardiac emergency treatment for the past six years.  The magistrate limited the records to two years and to redact the personal information.  The hospital objected and appealed since the request was overly burdensome and overly broad.  The District Court agreed with the magistrate.  This would show if the patient was treated differently than similarly situated patients.        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.