February 1, 2010 Recent Legal News
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Baxter v Montana
Montana Supreme Ct.
The issue was whether or not a physician accused of homicide could raise a defense based on patient consent. The answer was yes. They did not discuss whether or not a competent person has a constitutional right to die. The patient was terminally ill with leukemia sued the state for a statute that allowed homicide to be charged against a physician who aids a patient in suicide. The lower court stated that he patient has a constitutional right to die with dignity and physicians can not be prosecuted for homicide for aiding the patient by writing a lethal prescription. The consent defense exception in public policy is not valid in this case. Since the final act is in the patient's hands, the physician can not be charged with homicide. Top
Witham v Olympia Medical Center
ED Wash
Dr. Witham is an independent oncologist whop practiced at Olympia Medical Center (OMC). OMC hired its own hospitalists (OHP) and its own physicians including its own oncologists. The suit stated that OHP actively steer Dr. Witham's patients to the physicians owned by the hospital. The physician sued under antitrust and other causes of action including unfair competition. The court dismissed all the claims except the unfair competition claim which was allowed to go forward. Top
Nurses v Charleston Medical Center
To Be Filed
Two nurses were fired from the West Virginia hospital for refusing to be vaccinated against the Swine Flu. This is becoming standard in the hospitals across the country. Last month five nurses were fired from a Pennsylvania hospital for the same reason.
Daigle v Stulc
DC Maine
A nurse sued a physician for sexual harassment as well as the hospital in Maine where both worked and another company in Kentucky. The nurse sued in both state and federal court. the federal claim was based on HCQIA and was dismissed since there is not a private right to sue under this statute. The state court said there was not enough of a nexus between the Kentucky corporation where the physician worked previously and Maine to sue the parent. They tried to get the Kentucky corporation for not reporting the physician's behavior to the Data Bank or the Maine licensing agency. This is consistent with the Kadlec decision.
Sahlolbei v Montgomery
Ca Ct App
The physician, a surgeon, had past peer review problems with the hospital. He had signed with a Board member a confidential agreement with contained a non disparagement clause and an arbitration clause. The surgeon later made remarks about the nursing at the hospital being sub par. The Board member of the hospital told a reporter about the surgeon's abusive behavior about nurses. The surgeon sued for arbitration due to the "breach of contract". The lower court stated that the member was not entitled to an "antiSLAPP" suit. This was overturned by the court of appeal since it was about official hospital business. The court did allow the arbitration to proceed on the breach of contract issue. Top
Patients v Tennessee Blues
To Be Filed
In what is becoming commonplace among those who use electronic medical information systems and allow them on lap top computers the information is stolen. In this case 57 hard drives were stolen and the information of a half a million people are at risk. The hard drives were in a strip mall call center. This happened in October, 2009 and not reported to the public until now. An internal investigation was being performed and the police had been notified. They are offering free services to those affected. Top
Patients v Bayfront Medical Center
Florida Supreme Court
The St. Petersburg hospital was sued by two patients for not informing patients that a state law bars medical malpractice lawsuits for birth-related neurological injuries. If they fail to do so they may be sued. This hospital failed to do so relying erroneously on the notion that they are protected if the physicians tell the patients. The high court stated the law plainly states the hospital must tell the patients. Sounds like a new hospital attorney is needed at this hospital.
Lockshin v Semsker
Maryland Supreme Ct
The Court ruled that the med mal caps of the state apply even when arbitration has been waived and the matter goes immediately to court. Semsker sued Lockshim for a misdiagnosis of his cancer. Semsker decided to waive arbitration and go straight to court. On the final trial day a settlement was reached with the internist for the policy limits of $1 million with a credit against any non settling tortfeaser. The jury came back with a guilty verdict solely against the dermatologist. The judge originally reduced the $1 million to $ 812,500 per the med mal caps and then reversed himself due to the arbitration being waived. This was reversed by the high court stating it made no difference whether it went to arbitration first or not. The caps held.
Patients v Parker
To Be Filed
Nurse Kristen Parker of Colorado gave 36 people Hepatitis and potentially infected thousands more. She was a drug user who the hospitals failed to detect. She switched Fentanyl with Saline but used the same needles over again. She was employed at Denver's Rose Medical and Colorado Springs Audubon Surgical Center. Top
US v Detroit Residents
Filed
Thirteen people in Detroit have been indicted on Medicare fraud. They all worked for Patient Choice Home Healthcare and All American Home Care. they are accused of money laundering and conspiracy to violate the anti kickback statute. The allegedly recruited Medicare beneficiaries for their numbers via kickbacks. they then billed for services not rendered.
US v Vigil
Guilty Plea
Physical Therapist Jessica Vigil has pled guilty of fraud for claiming to do therapy on home health patients when none were done.
US v Ray
Indicted
Two Texas nurses, Brandon Ray and Stewart Powers were indicted for submitting false work and time records for nursing services not provided.
US v Bourseau
Settlement
Robert Bourseau and Dr. Rudra Sabaratnam, the former owners of City of Angels Medical Center agreed to pay $10 million to settle the case against them. they were accused of fraud by paying kickbacks to recruiters to bring homeless people to the hospital for unneeded procedures. Top
Bansal v Mt. Carmel Health
Ohio Ct App
Dr. Bansal was removed from the call schedule and filed suit. He asked for documents from the hospital which they claimed were protected. The court stated that the hospital bears the burden to show how they are protected. The hospital must provide particulars as to how they are protected and not just state that these are the type that are usually protected. The hospital must establish that a committee meets the definition of a peer review committee and then show how each document is a product of that committee. Top
Kelly v California
California Supreme Ct.
California has a law allowing medical marijuana. The people passed Prop 215 many years ago to allow this. Those that use medical marijuana need a marijuana identification card and under the legislature could only grow or have a limited amount of weed. Prop 215 stated nothing about the amount a person could have and the state Supreme Court unanimously agreed that there is no limit. 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.