February 1, 2007 Recent Legal News





Peer Review






US v Montoni

In Chelsea, MA, Montoni, DC, Tameran, MD and Moyseyav all owned a scam where phony prescriptions were given for meds and unneeded tests.  These tests were never performed but billed for.  Montoni got three years probation, Moyseyev got 18 months jail and a fine of $85,000.  Tameran had his license stripped for three years and had to pay a fine of $10,000 and an additional $3000 9n restitution. 

Illinois v Radiology

The Illinois attorney general has filed suit against about 20 Chicago radiology groups who she believes is paying illegal kickbacks to private physicians for referrals.  In something that I don't understand, the physicians billed the patients for the tests instead of the radiologists billing the patients.  The suit states the physicians are billing the patients for more than they paid for the tests.  Apparently, the AG believes this involved "sham" leases of the equipment. If convicted the fine is $10,000 per case billed and thousands have been billed. If true, these physicians and radiologists need to pay the full amount due without less in settlements.        Top


Valie v Cleveland Clinic

Bonnie Vailie had lung surgery and died seven years later.  The body was donated and was in a cooler at Northwestern Ohio University for a year.  During a dissection a first year med student found a 27 by 18 inch green towel left in the patient.  The Clinic states the retained towel did not kill the patient.  They plan to testify that the towel actually helped the patient last the seven years post surgery. The plaintiff's experts will testify that the patient would have lived five years longer and without the pain and distress caused by the retained towel.  X-rays taken right after surgery and later on in the recuperation showed the towel but it was misidentified as a collection of fluid. I hope the Clinic has it's checkbook handy. They did.  Two weeks after the trial, they settled with the plaintiff.  They should have done it much earlier.  Poor lawyering.  The physician was dismissed from the case.

Baise v Methodist Hospital

 Baise went to Methodist Hospital in Indiana for her pregnancy.  During delivery she was given a wrong dose of an epidural analgesic.  This has left her partially paralyzed in her lower extremities and in severe pain.  She has filed suit against the anesthesiologist, Dr. Gloria Lee and Clarian Health Partners. Clarian states that there was probably human error in this case and may be helping to pay for some of the patient's care.  They will pay alot more. 

Lambert v MetroHealth Med
Ohio Ct. App.

Lambert underwent a cardiac catheterization when the tip of the catheter detached and lodged in his lung.  This required a surgery to remove.  He sued for medical negligence and had an expert that would have testified that the incident occurred de to MetroHealth's negligence.  The testimony was not allowed in since the expert did not take into account the possibility of faulty equipment.  The plaintiff then tried to use res ipsa loquitor and failed here since the court stated there needed to be expert evidence that the incident would not have occurred but for the defendant's negligence unless the negligence would be obvious to a lay person.  Since the expert testimony was not allowed this reached to the res argument as well.  There was a directed verdict for the hospital.

Orraca v Lee

 Orraca, sued Lee and acted pro se.  Lee worked for the Department of Corrections.  Orraca signed a consent to allow the defendants to obtain a copy of his medical records.  He also requested and was denied access to the records without costs.  The department stated they would forward the 400 pages upon receipt of the costs.  the court ruled that the costs were warranted. 

Daniel v Wyeth
Penn. Superior Ct.

Mrs. Daniel sued Wyeth, the maker of Prempro, for causing her breast cancer.  She actually won $1.5 million.  This is the third of about 4500 cases over the drug.  Wyeth one the first and the second was a mistrial.       Top


Merlin v Kaiser

David Merlin was hired by Kaiser to help with their faulty renal transplant program.  he found a system that was beyond repair and said so.  One does not tell Kaiser what they don't want to hear so after a period of time he also reported them to CMS.  Obviously, he was fired for his telling of the truth.  He then sued Kaiser for $5 million but in December went through an arbitration hearing that settled the case.  The terms are secret. 

Muhl v Sutter

 Debra Muhl is US Reservist who in her first tour to Iraq was part of the team that treated Robert Woodward.  Her job at home is the administrative director of Sutter's joint cardiac program.  She was called back for a second tour in Iraq and just before leaving was told by her supervisor Dr. Richard Gray that her position was being eliminated.  That meant when she returned form Iraq she would have no job.  Upon return from Iraq, she filed a suit against Sutter for a violation of the Uniformed Services Employment and Reemployment Rights Act.  Sutter states the elimination had nothing to do with her redeployment and even paid her more than they needed to while she was on her second tour.  This case was so egregious that it ended up on the nighttime news. 

US v Urciuoli

Two executives of Roger Williams Hospital in Providence, Rhode Island have been convicted and await sentencing.  The former president of the hospital Robert Urciuloli and the former vice president Frances Driscoll were convicted of mail fraud in hiring a state senator to further the hospital agenda.  The former state senator, John Celona, was also convicted of mail fraud and is also awaiting sentencing.  Who says hospital administrators are pure?  See also the HRDI scandal. 

Central Indiana Podiatry v Krueger
Ind. Ct. App.

Krueger and CIP entered into a contract for Krueger to be employed by CIP.  The contract had a restrictive covenant.  CIP terminated Krueger for cause.  The covenant stated a two year time line and not to compete in 40% of the state which contained 48% of the state's population.  The lower court stated the covenant was overbroad but was overruled by the court of appeal.  The higher court ruled that the time line was no problem but the geography may be and may have to be amended.  They also ruled the new employer should not have sent notices to Krueger's patients stating where his new practice was.  This was a violation of the ownership of the records and it made no difference that Krueger was required under Indiana law to notify his patients that he was changing practices.  Public policy was also discussed and stated that it allowed individuals to contract over invalidating non-compete clauses. 

Union of American Physicians v L. A.

In a win-lose for the Union, they settled a law suit against the County for back benefits for their unionized physicians.  Each physician will get about $15,000.  The physician, after their hiring the union to fight for them, quit the union because they were afraid of losing their benefits.  The Union is now hoping these spineless physicians will return to the fold.   Top


Wal-Mart v Maryland
Maryland Ct. App.

A lower court decision to throw out the Maryland law that required only those companies with more than 10,000 employees to provide at least 8% of payroll on health insurance for their employees or pay into a state fund.  The only store that would impact is Wal-Mart.  The law violated ERISA which mandated uniform insurance for multi-state companies.  

Hospitals v HHS

 Fifteen Philadelphia hospitals are suing to stop the law that went into effect on the beginning of the year.  The new law prohibits the hospitals that are not members of Medicaid HMOs to collect more than the default rate as decided by the state for ED Medicaid patients in an HMO not with a contract with the hospitals.        

Patients v Catholic HealthCare West

A judge has agreed to the settlement of the case settled last year to have CHW pay up to $423 million to uninsured patients in refunds or forgiveness of debt. CHW has also agreed that for the next four years it will bill the uninsured no more than the managed care rates for care. 

Physicians v Oklahoma
10th Circ

The American Academy of Pediatrics sued Oklahoma for violation of the Medicaid Act by under funding the program. The physicians won in the lower court butt that was overturned in the 10th.  The court ruled that a state does not have to provide for all services just pay for medical services.  The court went on to state that physicians and patients do not have the right to sue to enforce the law.  Therefore, nobody does.       Top

Peer Review

Kivlehan v Waltner
NY App. Ct.

A patient sued her OB for an almost fatal infection requested in discovery the records of the physician's treating physicians and the hospital's infection control records.  The courts ruled the patient may have these.  The physician patient confidentiality does not reach to the names of treating physicians and the infection control records were made in the normal course of business and therefore not protected. 

Schindler v Marshfield Clinic
Wisc. District

Dr. Schindler, was terminated from the Clinic and sued the Clinic and individual physicians for breach of contract, not performing a good faith review and defamation.  Also he claimed emotional distress.  In October the Court allowed the case against the defendants to continue as to the issues of breach of contract and not conducting a good faith review therefore not having HCQIA immunity.  The latest iteration went for the defendants.  The court ruled that all other claims were spurious.  The Clinic followed its peer review policy and gave the physician due process.  In the defamation, the physician failed to prove that any defamatory statements had been made.  The statements to the NPDB and the other hospitals were true or the physician failed to show a causal link.  The emotional distress claim was tossed since Wisconsin law does not allow an employee from recovering tort damages for a breach of his own employment contract.       Top


Acosta v Byrum
NC Ct. App.

A patient sued a psychiatrist for giving an access code to medical records to an office manager who he knew or should have known disliked the patient.  The manager used the access code to get the patients records and then disclosed the information to third parties.  The lower court ruled for the physician but this was overruled by the appellate court.  The upper court ruled the case could proceed to trial.   

Patients v Nationwide Insurance
To Be Filed

A computer back-up tape was stolen from the office of a vendor for the insurance company.  The tape had almost 30,000 names, health data and social security numbers.  Aetna had the information of about 130,000 people stolen.  Nationwide and Aetna both will pay for the credit monitoring. 

Nurses v Ohio Bd. Nursing
To Be Filed

The Ohio Board of Nursing negligently placed on line the names and SSNs of 3031 nurses.  This was the second time the Board made the same mistake.  They were unaware of the mistake until they were told by a nurse who found the error.  The Nursing Board will not pay for any monitoring of the credit reports for these harmed nurses.  One nurse may sue.  

Patients v Salinas Regional Health
To Be Filed

Yet another computer with patients names, medical history and social security numbers has been stolen.  At least the information is double password protected.  Ain't electronic medical records wonderful.  this computer was used because the person goes from office to office.  I used to do the same, but with actual records that I put in my car when I left and took out when I got to the other office.          Top


Foster v Med. Bd. California
Ca. Ct. App.

Dr. Foster sued the Board for publicly disclosing information regarding disciplinary actions against him.  The Board had ordered the urologist to pass a professional competency exam.  Then a second expert stated that the urologist was not practicing below the standard and all disciplinary action was terminated.  The Board then released its initial action without its final action to the Federation of Medical Boards.  Dr. Foster sued and the Court ruled that the Board was correct.  It released the information according to the scope of employment and even if false the employees could not be sued if acting within their scope.  The Court ruled the disclosure was not inaccurate just incomplete.  It sounds malicious. 

California v Cottonwood Healthcare

This skilled nursing facility was given the worst rating under state law and fine d $90,000.  This was due to the lack of care for an 89 year old person with dehydration causing death.  The nursing home has established a plan to avoid future problems and intends to appeal since they love their patients.       Top


US v Cheung

Ip Kwok Cheung, a pharmacist in Cantonsville, Maryland, settled with the government for avoid criminal charges. He owned NatureCare Pharmacy and manipulated the Oxycodone inventory and provided false information regarding the drug.  He also dispensed the drug without legitimate prescriptions.  He settled for $500,000, the loss of his house, the loss of the sale of the profits from the sale of the pharmacy and the forfeiture of $77,000 cash.

Texas A/G Opinion

The Texas Attorney General has opined that physicians that perform third trimester abortions are potentially guilty of a criminal punishment (third degree felony) but not guilty of capitol murder. Another dumb law for the state with one of the worst records for physicians friendliness.        Top


Johnson v U of Virginia

Another attorney error.  Johnson sued the physician and the University of Virginia Hospital for EMTALA violations.  The court ruled that individual physicians may not be sued under EMTALA and since the Univ. of Virginia Hospital is not a legal entity capable of being sued, it also was dismissed.  The court allowed the plaintiff leave to amend against the hospital or the true legal entity, the state or the University of Virginia.        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.