December 15, 2005 Recent Legal News


Emotional Distress


Fraud and Abuse




Peer Review


Dureza v Tenet
Ca Ct App

A neurosurgeon and the hospital negotiated an agreement for on call and recruitment.  The hospital then stopped paying the neurosurgeon.  The medical staff was, unknowingly to the surgeon, investigating his use of medical devices. The neurosurgeon attempted to resign but was told to take a medical leave by the CEO instead.  He did this but the Board needed to approve the leave.  While waiting for the Board he was suspended for clinical reasons by the staff.  He sued for the money owed and the hospital attorney tried an end run by stating they are immune due to a SLAPP suit.  The court saw through the hospital lies and stated the monies are owed. 

Mohammadkhani v Nevada University Medical Ctr.
Federal Jury

 Dr. Khani, a physician at the quick care center, sued for discrimination and retaliation.  She was told by her supervisor that ovaries and medicine do not mix.  She had been transferred to the least desirable of all the clinics in Los Vegas.  She won $310,000.

Rosenberg v Becton Dickinson

Dr. Zell Rosenberg was fired after complaining about shoddy clinical studies, illegally copying a syringe design and other illegal activities.  BD states he was fired for clinical reasons.  

Hussey v Naples County Hosp.
Fla Dist Ct.

Hussey sued after the hospital entered into an exclusive contract with another pain management specialist and refused to give him a hearing.  The court agreed that no hearing was required when a person was let go due to business and not quality concerns.         Top 

Emotional Distress

Valentin v St. Francis 
Conn Super. Ct.

A hospital discontinued the life support of a patient but did not notify the daughter so she could participate in the decision process.  The hospital stated it had no duty to inform the daughter.  The court disagreed stating there was public policy to support notification attempt where there were no known living wills or other written expressions of desire.        Top


Day v Swedish Medical Center, Seattle Washington

The patient awoke from anesthesia and found her head afire.  The patient may have worn an alcohol based hair product.  Swedish now asks in its pre surgery form about hair products. 

Doe v Kaiser
To be filed

In the past two years two patients have died at Kaiser Santa Clara due to receiving double doses of meds.  Last year Josephine Hart age 12 died after receiving a double dose of a pneumonia medication.  This time it was after a double dose of a stroke medication.  This also happened in the past month at Kaiser's Santa Teresa when a patient received the wrong medication. 

In yet another death at the Kaiser Santa Clara facility happened when a person who was not supposed to be eating died choking on food.  The staff negligently fed him even though he was NPO. 

Oswald v Kaiser

 In yet another case against Kaiser, a patient died for lack of a consult.  The patient was seen due to a pop in his right ear followed by extreme pain.  He was diagnosed as otitis media by a PA and given erythomycin.  Three days later he again was seen by the same PA with significan right ear drainage.  Several weeks later he went to the ED where another PA saw him with fever, severe 10/10 right ear pain and drainage.  His ear was drained by the PA and he was discharged on no antibiotics.  The following day he returned to the ED in septic shock and died.  He was never seen by any MD until his date of death.  This is third world medicine by any standard.  His family received $453,466.

It should be noted that Kaiser has picked and chose the physicians it reports to the medical board and the NPDB.  They are now required to report all physicians in the suit if any monies are paid.  

Patients v Tenet

In the final round-up to  the case of potential cardiac surgery, the two physicians involved and their medical liability carriers are paying an additional $27 million.  This also means they will not face criminal charges for performing not necessary surgery. 

Debbas v Nelson
Md Ct. 

 The patient's family sued the hospital after the patient died in the ED following treatment by independent contractor physicians.  The court stated that the consent form stated that physicians are hospital staff and the treating physicians were the chief of staff and the chief of surgery, it was possible to rely on the agency when she went to the hospital.

Patients v St. Joseph Denver
To Be Filed

St. Joseph Hospital has a problem.  One operating room has aspergillus, a fungus.  One patient has already died and another may be life long meds due to infections from the OR. The Colorado State Department of Health and now the CDC is investigating.  There are about 15 other people that were exposed to the fungus.

Clark v Druckman
W. VA. Supreme Ct.

Clark was sued for malpractice and Druckman was the attorney for the plaintiff.  The case was dismissed with prejudice and Clark sued Druckman and the other attorneys for emotional distress, interference with business and negligence.  The Court ruled that the plaintiff's attorneys had no duty to the defendant and were therefore not liable.  This basically throws out any future suits against attorneys that file false claims against defendants.

Longnecker v Loyola University
Cook County Ct.

Mrs. Longnecker won $2.7 million in a law suit against Loyola for the negligent death of her husband.  The patient had a heart transplant after waiting 14 months and never regained consciousness after.  The heart was enlarged and had coronary heart disease.  The harvester had failed to find the abnormalities.  The transplant team had already opened the patient and removed his heart before the problems were found.  The harvesting physician was found not guilty by the jury.  The transplanting physician was not sued.  Loyola will appeal since neither physician was guilty, how could Loyola be guilty.         Top

Fraud and Abuse

US v Beth Israel Hosp.

Beth Israel Hospital in New York has agreed to pay $72 million in fines for defrauding the government.  A whistleblower turned in the hospital for illegally inflating the amount of money it was owed for costs.        Top


Benitez vs MDs
Ca Ct App

The California Court of Appeals upheld the right of physicians to choose wheat they wish or wish not to do.  Benitez, an unmarried lesbian, went for insemination.  The physicians refused citing religious beliefs.  The plaintiff eventually became pregnant via insemination but by another physician outside of her plan.  The appeal overturned a wrongly decided court decision that the physicians could not raise religion as a defense.        Top  


People v Medicare

In the Brotherly State of Pennsylvania, a law suit has been filed that would prevent low income Medicaid patients also on Medicare from being forced into Medicare managed care plans.  This would save a significant amount of money and has been in place in other states for years.  This is an end around of Medicare Part D which some liberal lawyers don't like.          Top


Carlisle v Fisbie Hospital
New Hamp. Supreme Ct.

The Supreme Court has agreed with a jury that the hospital violate EMTALA by failing to stabilize a patient.  The patient had suicidal thoughts and the hospital called the police.  She was arrested and released the following day.  She claimed increased depression due to her arrest and lack of stabilization.  The patient had refused to see a counselor at the hospital while in the ED.  The Court allowed professional negligence against the physician to stand as well.  Another New Hampshire decision not well thought out.   

Morgan v Miss. Med. Ctr.

An uninsured was taken to the ED for serious injuries following a fall.  He was admitted and after it was determined he could not pay, was discharged in an unstable condition.  He died 12 hours later.  The Court ruled the admit was a sham to avoid EMTALA.     Top

Peer Review

Benjamin v Schuller
SD Ohio

Benjamin was fired after one hearing in which he was not allowed to speak to defend his case.  There were many other hearings subsequently, none of which included the physician.  The Court ruled that he got due process and that his report to the data bank for incompetence was rightful.  The charge against the physician was he did not come up to the standards of a teaching university, not incompetence.  The Court said there was adequate evidence and it was not arbitrary or capricious.   

Lees v Asante
D. Or

A physician sued for summary suspension.  The hospital defended on HCQIA immunity.  The hospital won on the time after the hearings but lost on the time prior since there was no reasonable effort to obtain the truth by the Board.

Logan v HCA
MD Tenn.

The physician acting as his own attorney sued two hospitals, one for a Data Bank report and the other for a recession of a recruitment contract.  The Court stated there was no private cause of action under HCQIA and dismissed the suit.        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.