December 1, 2008 Recent Legal News




Peer Review



Kloch v Kohl
8th Circ

The physician sued the Kansas AG for defamation due to giving him a public letter of concern (it did not go against his license) without allowing him notice of the charges and not allowing him a chance to respond.  The physician prevailed in District Court but the 8th Circuit overturned giving the AG qualified immunity.  The District Court stated the law concerning the letter was unconstitutional on its face and that the AG as an attorney should have known.  The Kansas legislature has since eliminated these letters of concern.        Top  


Fairbanks Hosp v Harrold
Ind. Ct. App

Harrold had been admitted for substance abuse.  She was sexually harassed by an employee of the hospital who was terminated.  Harrold sued for an intentional tort, battery against the employee and vicariously the hospital.  The hospital asked for a ruling that the suit fell within the Malpractice Act.  The trial court ruled against the hospital and the hospital appealed.  The court of appeal agreed with the trial court.  The court stated that employee actions are not malpractice.  

Hamrick v Charleston Hospital
Filed W. Va.

Hamrick sued for wrongful death after  the patient developed an infection post op bilateral femoral fracture. The patient had a femoral IV for Dopamine that infiltrated and not discovered for several days.  She developed an infection in the area of infiltration and eventually died. 

Altman v Physicians

Altman's estate sued Dana Farber Institute physicians but not Dana Farber for malpractice following her death after experimental chemotherapy for Ewing's Sarcoma.  She developed severe diarrhea which was overlooked and eventually caused her death by "flesh eating bacteria".  Her estate was awarded $9.4 million plus interest for a total of over $13 million. 

Cook v Sunrise Hospital
Nevada Supreme Court

Cook had back surgery and later developed a blood clot in her leg which eventually led to an amputation.  She sued and lost in trial court.  The key was that the hospital did not have the proper equipment which increased the time the vessels were without blood.  The trial court accepted the hospital jury instructions that stated a bad outcome does not prove or imply the hospital was negligent.  The judge did not tell the jury they may consider other evidence to determine fault.  The erroneous jury instructions allowed the plaintiff to retry the case.     Top


Ellicott v Leavitt
SD Ga.

Ellicott, a podiatrist, pled guilty of four counts of upcoding and was sentenced to 4 years probation, a fine of $20,000, a $40 special assessment and restitution of $113,101.  He was then notified that he could no longer bill for any federal patients for 10 years.  He went to an ALJ who upheld the decision and then sued.  He lost there as well since he was convicted of a criminal offense and the offense was related to the delivery of a Medicare service.  He tried to state that he was only guilty of violating his Medicare agreement and that did not fly. 

US v Berkowitz

An orthopod, Dr. Howard Berkowitz of Atlanta, Georgia, and two chiropractors were sentenced to prison for faking reports on a procedure not covered by insurance.  The physician got 18 months and he testified against his former partners who each got 3 years.  

US v Rogan

 Peter Rogan, the former CEO of Chicago's Edgewater Hospital, owes a bank and the US Government tens of millions of dollars.  The government and the bank are finding at least 60 off shore properties and accounts held by Rogan and are slowing taking them over.  Mr. and Mrs. Rogan are now in Canada where their passports have been taken away by the Canadian government. 

US v Harris

Dr. Ronald Harris, a Miami, Florida physician, and two others were sentenced for unnecessary HIV infusions.  Harris got 7 years in jail and ordered to pay $9.8 million to Medicare.

NY v Capitol Region Ambulatory Surgical Center

The above surgical center in Albany was fined $2.25 million by the state for waiving out of pocket costs for government workers.  The center was not in the state run Empire Plan.  They now will be.  The state paid more to the center since they were out of plan provider.  The center is owned by Capitol Region Othopaedics in the area.

Bridget B v John B
Los Angeles Court

John B was sued in civil court for fraud and malice for knowing and not telling his wife about his HIV.  She won a $12.5 million judgment and the fraud with malice determination means he will have to pay even if he goes bankrupt.

US v St. Vincent Health

The Pennsylvania health system agreed to repay Medicare $1.9 for inflating claims to get outlier payments.  This was a qui tam suit.

US v Bayer

Bayer, the maker of diabetic supplies has been fined $97.5 million for paying kickbacks to Liberty and other diabetic suppliers to have them switch patients to their units. Liberty stopped carrying my make of diabetic supplies and switched me to a Bayer product.  I called Liberty and they are taking the Bayer product back and sending me a new meter and strips, non- Bayer, at their expense. I will stop using Liberty after I get the new supplies.      Top

Peer Review

Burrows v Northside Hosp
Ga Ct App

Burrows had his privileges removed after a peer review process and appeal process. He stated that the hospital was not entitled to HCQIA protection because his leak rates after bariatric surgery was better than the national average.  This left out that he falsified his credentials, exhibited poor surgical technique and caused the death of a patient. There was no evidence the hospital acted with malice. Any guess as to who won.

Grain v Trinity Health
ED Mich

Two physicians sued the hospital for violation of the peer review privilege and breach of contract.  The hospital prevailed since there was no private cause of action against the Michigan Public Health Code and the bylaws did not form a contract between the hospital and the physicians. 

 Crafton v River West Med Ctr.
La Ct. App.

Dr. Crafton was summarily suspended and went through all the hearings and lost.  She sued based on lack of due process since the hearing officer was the also the representative of the medical executive committee (a conflict of interest), there was inconstant testimony by the hospital CEO, the medical staff attorney advised the hearing officer (a possible conflict of interest) and failure to comply with the hospital bylaws.  Dr. Crafton had the burden in court to show why the court should not give summary judgment to the hospital and according to the court did not make her case.

Smith v Selma
Article by Hospital Attorneys

Two hospital attorneys published an article in the AHLA Weekly News vilifying the logical decision in the above case.  The facts of the case are that Dr. Smith was removed from two Adventist hospitals and there was an attempted removal in a third in which Dr. Smith had no problems.  The JRC sided with Dr. Smith and was overturned by the same Adventist Board that had heard the case at the other two hospitals.  Smith sued and won in both the trial court and the court of appeal.  The California Supreme Court refused to hear the case.  The writers urge hospitals to revise medical staff bylaws to take out the wording that if the JRC has any substantive argument the appeal board must agree.  The hospital has no right to change medical staff bylaws.  The writers want settlement discussions not be a part of any hearing.  This is a good policy and if there are settlement discussions there should be confidentiality conditions.  The writers end with the members of the hospital where the physician has had no problems to be able to just use the findings at other hospitals as their own.  They then realize the fallacy of their own argument and recommend that knowledge of problems at other hospitals should put the medical staff on notice and that they should be cautious and look over the shoulder of the affected physician.  This is reasonable for patient safety.  There is no HIPAA reason to share peer review material without deleting all PMI.   It is important when reading articles like the one in the hospital biased AHLA or in my possibly biased thread who the writers are and what axe they have to grind.          Top


National Business Group v San Francisco

The National Business Group added an amicus brief to the San Francisco Restaurants suit against San Francisco for their universal healthcare.  The 9th Circuit panel has ruled for the City but the plaintiffs want the full 9th Circuit to hear the case as it is an ERISA issue.  

Florida v Health Central Hospital

 Florida fined Health Central Hospital for not reporting as required an employee's sexual harassment charges.  Another hospital hired the employee and he sexually harassed a patient at that hospital.  The second hospital stated they would not have hired the employee if they had known about the first hospitals problems.  I don't understand why the second hospital did not look into the references of the employee.  

LA v Blue Cross

Los Angeles is continuing its law suit against Blue Cross and others for illegal patient insurance rescissions.  California has already settled with the insurers and is attempting to block the deposition of a Blue Cross official as it might derail the settlement. 

Juniper v Aetna
4th Circ

Juniper sued Aetna for $40 since they didn't pay for a health benefit.  He sued and won in all arenas including the 4th Circuit.  The attorney was pro bono.  Juniper plans to frame the check.  

IMS v New Hampshire
1st Circuit

New Hampshire made a law that prohibited physician specific drug data being used for pharmaceutical marketing.  IMS, a data mining company, sued and lost. This also overturns a ruling in Maine allowing the mining as free speech.  The Court said the law regulated conduct and not speech.  

Calif. Nurses Assn. v California Education

A ruling by a state judge states that only licensed nurses may give insulin shots to school children.  It should be noted that unlicensed people were allowed to give the shots since there is a shortage of school nurses.  The nursing association states that this means the schools will have to hire more nurses.  In other words the case was over jobs and not quality.      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.