February 1, 2004 Recent Legal News





Fraud and Abuse

Peer Review


Ladesma v Kaiser

I recently received this unsigned Email;

Mr. Tobias,
    With regards to the arbitration award  Ledesma v Kaiser, are you aware that Arbitration Awards and proceedings are NOT public record AND are confidential?  Are you also aware your interpretaion of this judgement is 'loose' at best?
Please remove.
Thank you.

The misspellings are not mine. I get all my information from public sites.  I have no way to get confidential information.  

Fisher v Westminster Med. Ctr.

The parents of a 12 year old taken to the hospital, after first being taken to another hospital, are suing for the death of their child.  The patient was hospitalized for headache and died about 36 hours later.  The parents contend that no tests were performed and that after receiving high doses of pain medication he was not monitored with a pulse oximeter.  The hospital contends the parents interfered with the work-up and treatment of their son.  The hospital states the parents repeatedly prevented the staff from dong basic exams and ordered the staff to stop standard procedures on multiple occasions.  

Cohen v Johns Hopkins

This two year old with a brain cancer died after being given an improperly mixed medication.  The hospital has admitted full responsibility.  An attempt at settlement was thwarted when the hospital balked at paying the full amount allowed under Maryland law, $1.59 million.  They contest the value of the patient's conscious suffering and whether or not it was a legally defined wrongful death. 

McCarty v Magee Womens Hosp.
Pittsburgh, Penn. Filed

A second pathologist has accused the hospital of lying and covering up their ineptitude in mislabeling their Pap smears.  Dr. Marty stated when he and his associate, Dr. Silver reported the problems to the administration, they were told to cover it up.  He had attempted to discuss the quality problems with administration but was told he was disruptive and would regret his stance. He has been terminated.  Dr. Silver had been terminated and has already filed suit against the hospital.  The suit is being filed under the state's Whistle blower law.       Top


Arana v Ochsner Health Plan
US Supreme Ct.

The high court allowed a 5th Circuit ruling to stand stating that both preemption and conflict preemption are not both required to remove a case to federal court.  Arana was injured in a car accident and was a beneficiary under his mother's health plan offered by her employer and administered by Ochsner.  The plan paid about $180,000 for his care.  Arana received about $1 million in settlements from various auto insurance companies and Ochsner sued for repayment of its outlay.  Arana filed for declaratory relief in state court  under the state's antisubrogation statute.  Ochsner removed the case to federal court under ERISA.  The lower court ruled for Arana in the antisubrogation matter but stated it was completely preempted by ERISA.  The Court of Appeal ruled that the action was for his right to benefits and was not saved since the Louisiana subrogation law only applied to insurers and not insurance in the broad sense.  Bottom line-Ochsner won.        Top


Hughes v Montana Med Board
Montana Supreme Court

Hughes signed an agreement with the Board agreeing he did unprofessional conduct, get one year probation and be reported to the NPDB.  After his probation he sued to get the report revoked.  He lost.  The doctor stated he signed the agreement under duress and courts did not agree.   

California v Doe
MBC Decision

 This was not a legal case but a decision by the Medical Board of California.  The facts are that a patient with terminal lung cancer was in a nursing home and came under the care of the physician.  The physician prescribed pain medication for the patient on a prn basis but erred in writing for the liquid form when it only came in pill form. The mistake was caught by the pharmacy and corrected.  The patient needed hospitalization and during those few days saw a physician who does alot of pain medicine.  The patient then went back to the nursing home and died shortly.  The family sued both physicians for allowing the patient to die with severe pain.  There was a settlement in malpractice portion of the case.  The medical board then got involved due to pressure by the family.  The physician who does no hospital care but only office and nursing home care is 80 years old and is of good sound mind and physically strong.  The board stated the physician needed to take a course in pain management at UC San Diego for $5000, pass an exam given by the institution, receive a public letter of reprimand and be on probation for several years.  It is interesting that a course on pain management happens to now be required of all California physicians by 2006.  This case is one of the principal reasons why in the past physicians had under treated pain.  They were afraid for license problems if they gave too much medicine.  Now, the reverse will come to pass.  I hope the Board will someday find the correct way to stop being a pain and allow for differences of opinion.  

Rossiter v Ohio Med. Bd.
Ohio Ct. Appeal

 In a miscarriage of justice the Medical Board of Ohio revoked Dr. Rossiter's license for filing a false tax return.  He admitted doing so and explained the reason.  He sued the Board and won in both the lower and Court of Appeals.  The Board was ordered to relook at the case as there was no moral turpitude involved.  They relooked and essentially gave him the same punishment, permanent suspension of his license instead of revocation.  He again sued but this time lost in both courts because the Board followed it's own rules and therefore the courts have no say.  Under the rules of the Board, the sanction of Dr. Rossiter was permitted.  The Court of Appeal actually hinted in dicta that they may not agree with the Board but must follow the law.         Top


Dada, MD v Thio, MD
Calif. Trial Ct.

In one of the largest jury trial awards ever given in an employment type case, the plaintiffs won $11.5 million.  The two named plaintiff physicians and their multiple business interests sued Dr. Thio for defamation.  He was found guilty of lying to the doctor's colleagues about their being accused of Medicare fraud, losing their licenses and going to jail.  This stemmed from a prior business relationship between the parties that soured.  This verdict will probably be lowered by the judge but will still require Dr. Thio to go bankrupt.        Top

Fraud and Abuse

US v Pfizer
Settlement Pending

Pfizer and the government are close to a settlement over drug fraud charges.  The case is about the fraudulent marketing of Neurontin, an anti-epilepsy drug.  Pfizer has socked away  $402 million for possible settlement. 

US v Lazar, MD

Dr. Lazar has been accused of filing false claims for frontal sinus surgery in five year old children whose frontal sinus have not developed until the age of eight.  He is not a board certified ENT, but has practiced in Memphis, Tennessee at the Otolaryngeal Consultants.  He also falsified billings to show he was the surgeon when in fact he was not.  In his office he billed for 15-30 minute visits on between 60-80 patients in a five hour session.         Top

Peer Review

Rdzanek v Hosp. Serv. Dist. 

Rdzanek, a cardiologist, had her privileges reduced and went through peer review.  She continued to lose her privileges and filed suit for a preliminary injunction stating the peer review was unfair since those that originally recommended her privilege reduction were all competitors.  She lost and won.  The court that had originally rejected the request for the injunction and stated there was amble proof of fairness with outside cardiology review.  The court did not allow the hospital's request for dismissal since she did state a claim and that needed to be tried.        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.