December 1, 2013 Recent Legal News
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Nurse Anesthetists v George
Washington University
FINALLY DISMISSED
In a case that is equivalent to Jarndyce v Jarndyce, the infamous Dickens case, since it was filed in 1995 there have been over 800 filings until the final dismissal of the case. Three different judges have ruled on the case as has two different magistrate judges. Let us hope there will be no appeal from the latest ruling of summary judgment for the University and that the plaintiff attorneys were paid on a contingency basis. Top
US v Kwaitkowski
Sentenced
The infamous medical technician had pled guilty to federal drug charges for stealing drugs and replacing them with saline. In doing this he infected many patients with Hepatitis C, some of whom have died. His last stint was at New Hampshire's Exeter Hospital where he was finally caught after infecting 32 of the 46 he is known to have infected. He was sentenced to 39 years in prison.
SEC v Huber
Settlement
Marie Huber, a hedge fund analyst, settled with the SEC over her remarks in the Journal of the National Cancer Institute where she stated that Provenge would hasten the deaths of patients. In that article she did not disclose any conflicts. She did have a conflict. She had purchased stock options in her and her mother's portfolio to short. The stock did fall and she profited but then lost big when most of her options were not executed. She has been barred from the securities field for six months and fined $25,000.
California v Martello, MD
Sentenced
Dr. Jeanette Martello of South Pasadena was sentenced to five days in jail and pay $562,500 in penalties. The plastic surgeon was found guilty of improper billing of emergency cases. She billed her usual fees and did not accept the discounted rates insurers were paying. She has appealed the jail time and will probably also appeal the penalty. The physician argued that when she saw the patients they were stable so she could charge her usual and customary prices. The five days were for a violation of a prior temporary injunction against balance billing. Top
Fairfield County Medical Assn. v
United Health
TRO Granted
In a huge case for physicians around the country, a federal judge has ruled that United Health can not, at least temporarily, remove physicians from their Medicare Advantage panels. The insurer unilaterally amended their contracts and then terminated the physicians. Several days later the 2nd Circuit refused to dissolve the TRO. The case was referred to a 3 judge panel. The insurer has stated that it intends to continue to cut physicians from its panels who are not directly involved in the suit. CMS has stated the physician termination does not affect the ability of United to have adequate coverage of physicians and travel time.
Notre Dame University v Sebelius
Filed
Yet again Notre Dame has filed suit over the contraception mandate in Obamacare. They had filed in May 2013 but the suit was declared premature since HHS had not given out the rules as yet. They state it burdens their religious practice. The Supreme Court has already agreed to take up the issue. Top
Patients v EMR
To Be Filed
Instead of delineating individually all the goofs that result in EMR breaches, I decided just to lump them together. Pittsburgh's UPMC had an employee inappropriately view medical records. That is 1300 people. The employee was terminated but the EMR was not. The University of Washington Medicine had it's files hacked when an employee opened an email attachment with malware. Employees are now getting more training on how much EMR can hurt patients.
Patients v Kaiser
To Be Filed
Kaiser stated that a flash drive with information on 49,000 patients is missing from its Anaheim Medical Center. This is a breach of medial and not financial information. There was no encryption.
Patients v Houston Methodist
Hospital
To Be Filed
In yet another EMR screw-up, the hospital states that an encrypted laptop and some paper files with personal information were stolen. This affected about 1300 people and included SS numbers. Top
Patients v Charles Dean
Hospital
To Be Filed
The hospital in Greenville, Maine, has sent out notices to 76 patients who had a cystoscopic procedure from September 9 to October 25, 2013 that they may be at risk for infections due to inadequate sterilizations of the instruments.
Harrington v Gaulden
Georgia Supreme Count
The Georgia Supreme Court ruled that a medical director could not be sued for medical malpractice if he had no direct contact with a patient. The suit claimed the director was negligent in not supervising the ER physician and nurse to make sure they were familiar with the hospital chest pain protocol. Top
DeVore v Heritage Provider Network
Ca Ct App
The physician practice sued the insurer for removing it from the network without due process. The insurer said that the provider did not exhaust its administrative remedies. The lower court agreed and granted summary judgment. The court of appeals reversed since there was no mention of any appeals process administratively. Another example of a law firm that needs to be replaced.
Baptist Hospital of SE Texas v Acceptance
Indemnity Assurance
Filed
The hospital is suing the insurer for not paying the hospital after it settled with a person injured by an Acceptance insured company. The hospital had a lien on the proceeds.
Mountain View Surgical Ctr. v
CIGNA
Ca Ct App
The suit was for payment for services rendered put not paid by the insurer. The surgical center lost on all its issues but all were allowed leave to amend for all. I hope they get a better attorney for the amended complaints. Top
Jackson HMA, LLC v Morales
Mississippi Supreme Court
The state supreme court ruled in a breach of contract suit by an opthalmologist against the hospital that the ruling should stand but the damages need to be re-litigated at net and not gross earnings. The physician sued the hospital for offering him a job and then reneging on the offer. The hospital attorney in this case was negligent in my opinion since he should not have allowed the hospital to state the offer was not contingent on the board approval. He also should have settled the case since he knew the hospital was wrong. Bad lawyer. Bad.
Muzaffar v Aurora Health Care
DC Wisc
When is a non-employee an employee? When EMTALA is involved. The physician sued the hospital for retaliating against him for reporting patient transfers which he believed were EMTALA violations. The hospital said the physician was not employed and therefore could not sue. The physician was indeed an independent contractor but for the purposes of the suit needs to be considered an employee of the purpose of the law would be negated.
Stratienko v Chattanooga Hamilton
Hospital
Tenn Ct App
In this long long long case (see below)
the proceedings have finally ended, maybe. The court of appeals again
stated that the physicians suit for loss of business due to his suspension was
not proved and should be dismissed. This has gone from the lower court up
to the Supreme Court and now back to the court of appeals. It has also
gone to the federal courts. All the courts have ruled for the hospital.
Stratienko v Monroe(3/15/2006)
Tenn. Ct. Appeals
The two opponents are physicians at Erlanger Medical Center in Chattanooga. They had a fight in the cath lab at the hospital and Dr. Stratienko was suspended. He filed an injunction and was allowed to stay on staff until the case was concluded. Dr. Stratienko as part of his suit wanted to examine the credentialing paper of Dr. Monroe. Thee papers requested were the request for privileges for peripheral vascular procedures. The lower court stated the papers were protected but this was overruled by the appeals court. The appeals court stated that any papers made in the normal course of business and can ve obtained from other original sources can not be given peer review privilege just by running them through peer review. While all this is going on, the physician continues his practice even though he has gone through a full peer review hearing which was not implemented due to the suit. When the suit is over he will need to apologize and get anger management counseling.
Chambi v WMC-SA Inc.
Ca Ct App
In convoluted thinking the Court of Appeal decided that the neurosurgeon who sued the hospital for not having another neurosurgeon on the panel as required by law loses his case. The physician requested another neurosurgeon on his peer review panel. The hospital said that it was too expensive to get an outside one and the local ones were biased. The physician was terminated from the staff. He sued and the court agreed with him that the hospital has the duty to show why they could not hire an outside neurosurgeon to attend the hearings. However, the physician did not show that the result would have been different if a neurosurgeon would have been present. Very had to prove a negative. 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.