February 1, 2012 Recent Legal News




Peer Review and Employment


Whistleblowers v Lap-Band

Two former employees of Lap-Band have filed suit stating the people affiliated with the Southern California program have had people get the surgery who did not need it and were culpable in a patient death.  Five people have died to date from the procedure in the Lap-Band clinics.  The two state that they were retaliated against for reporting unsanitary and unsafe conditions at the clinics. 

Kundert v Illinois Valley Hosp
Ill. App Ct

In an interesting case of when a person becomes a legal patient.  The parent of the deceased called the hospital ED and was told by someone that the child needed over the counter meds.  The next day the family physician saw the patient and recognized meningitis.  the patient died.  The parents sued the hospital but the case was dismissed since the patient never sought a physician and a physician never accepted the patient.

Walker v Sonora Hosp.
Ca Ct App

Walker had prenatal care by a non employed physician who recommended a cystic fibrosis test on the mother.  The hospital did the test.  It was positive and the hospital notified the physician.  The physician did not tell the mother and the baby was born with cystic fibrosis.  They sued the hospital for not having policies in place to make sure the mother was notified.  It is obviously a screw-up by the physician who had no relationship with the hospital.  The patient rightfully lost.

Santana v Chaudi
NJ Superior Ct.

In a reversal from the above case (different facts) the hospital was found to be potentially vicariously liable for it's independent practitioner ED physicians.  The ED physicians missed a diagnosis that led to harm and there was a sign up in the Ed stating the ED physicians would bill separately but not anything about the independent relationship of the physicians.  The court allowed the case to go forward.  The court stated that they looked at the totalities of the facts and a reasonable person could believe the physicians were hospital employees.

Chandler v Memorial Hosp
Fla Superior Ct.

Clay Chandler sued HCA Memorial Hospital and his physician in Jacksonville, Florida, for med mal.  He claimed that following weight loss surgery he had multiple complications that were not picked up or treated timely.  This caused him to be wheel chair bound, nearly blind and unable to speak.  The hospital was added for being dumb.  They marketed a team of surgeons for the procedure and then after the surgery had the patient sign a statement that the surgeons were not working as a team.  They also were accused of negligent credentialing for the physician as he is alleged to not be qualified to perform the surgery or handle the patient post operative.  The hospital is now going to appeal the $175 million judgment and an additional $10 million in punis.        Top


States v US
US Supreme Court

The high court has allowed a change of plaintiffs in the case against Obamacare.  The original private person was no longer eligible to sue since she had filed for bankruptcy and was now on Medicaid.  The new plaintiffs are individuals that would be affected by the individual mandate.

Obama has filed a plea with the Supreme Court that if they declare the individual mandate unconstitutional they should not throw out the entire Obamacare law. The Justice Department agrees that if the individual law is struck down so should the part about pre-existing conditions and the "community rate" be gone.  They say the remainder should stay.  Obamacare itself has no clause that states if one portion is found unconstitutional then the rest shall stand.  The Justice Dept. believes or was told to believe that that is implicit in the law.    

Again the courts have stopped California from cutting Medicaid payments to medical providers.  The Supreme Court of California will rule on this issue.  

Patients v U of Miami
To Be Filed  

A dumb pathologist at the University had a laptop with personal health information on over 1200 people in his backpack in his car.  You know the story.  I do not know how hospitals allow people to carry this information home.  No financial information on this break in.        Top


NY v Hemrajani

Dr. Suresh Hemrajani of New York City was sentenced to six years for his part in a HIV scam of treating patients who were HIV negative.

US v Applebaum

Dr. Michael Applebaum of Idaho was ordered to return $93,556.26 in fraudulent claims paid for his psychiatric treatment of undocumented and illegible services.  He also had his medical license revoked and sent to prison for five years.  There was $30,000 in fraud for backdating sessions and for billing for cognitive sessions when only meds were monitored.  He had a past history of a conviction for a felony drug diversion.

US v Popov

Dr. Alexander Popov was sentenced to 8 years in prison for healthcare fraud.  The Los Angeles physician ran a scheme where cappers would get patients and pay each patient $100.  The patients would be treated and Medicare billed for unnecessary services.  Dr. Popov saw none of the patients but signed the charts.  Seven others have pled guilty including one physician.  Another physician, Dr. Emilio Cruz III is awaiting sentencing.  

US v 10 Individuals

Ten individuals in Puerto Rico were indicted for healthcare fraud  The government claims that the ten submitted over 1500 fraudulent claims to Medicare.  A physician licensed in Puerto Rico but not a Medicare provider signed the charts and wrote prescriptions for the Medicare patients illegally according to the indictment.

US v Myint
6th Circuit

Dr. Toe Myint was hired by an infusion company in Michigan that did unnecessary and illegal infusions.  The physician said he had no explicit knowledge of the fraud.  The Court stated this was not necessary as he admitted some infusions were done on patients that did not need them and he signed papers after they had been significantly altered by the clinic owners.  Prison 6 years.

US v Pineiro

Jorge Pineiro, RN of Miami pled guilty of healthcare fraud for falsifying materials to make patients seem like they were home health recipients when they were not.  Nurse Pineiro faces a 10 year sentence plus fines.   

US v Nine

The feds have indicted nine people including some physicians for anti-kickback violations.  The people from Lansing and Jackson Michigan paid or were paid for referral for testing that was not necessary.        

US v Cayuga Medical Center

The Ithaca, New York, medical center paid a fine of $3.5 million to settle claims that they illegally recruited physicians.  This was a whistleblower suit filed by a former plastic surgeon in the area.  They paid for expenses not covered under the law and an illegally extended a recruitment agreement. The physicians were not fined.  The whistleblower got $567,000.         Top


Peer Review and Employment

FDIC v Mathew Perry
Ca District Ct

This case is important as the court ruled that the business judgment rule does not apply to officers and only directors.  If someone is both an officer and a director and is sued only in his officer status, he is not protected.   

Castrillon v St. Vincent 
SD Ind

A male physician and a female resident became romantically involved.  The female attempted to end the relationship but the male continued to pursue her using inappropriate language. The male's contract was not renewed and the female was placed on probation due to excessive tardiness.  She was terminated due to a breach of her probation requirements.  She filed suit against the hospital and the hospital filed to have the suit dismissed.  The court denied almost all the hospital's claims as they fired her right after she told them she was going to file suit.  The hospital need new attorneys.

Smigaj v Yakima Valley Hosp.
Wash Ct App

The physician was given a precautionary suspension after a review of several cases.  The MEC reversed and put her on probation with external review for three months.  She sued and in the lower court the hospital won summary suspension.  The Ct. of Appeal reversed stating the hospital did not give due process and therefore lost its immunity to suit.  There was no notice and hearing in this case.

Pierson v Orlando Regional Hosp.
11th Circ

The hospital removed the physician from the ED list after finding that he took too long in surgery, scheduled surgery at inappropriate times, made his cases urgent and delayed dictating op notes. The physician requested and received a hearing.  The committee wanted the hospital to work with the physician to correct his deficiencies.  The physician refused to agree and the Board agreed with the original suspension.  They filed a report to the NPDB.  He was told he would be restored if he complied.  He refused, moved to another state and sued for breach of contract, etc.  He lost.

Guttman v Khalsa
10th Circ

 Guttman had his license revoked and sued for violation of the ADA.  He lost under the state having sovereign immunity.  He also sued the individual members of the Board and lost again since the had qualified immunity.

Gaalla v Brown
5th Circuit

Three cardiologists of Indian heritage had their privileges to implant pacemakers curtailed by Citizen's Medical Center while giving the privileges to less qualified non Indian physicians.  CMC eventually passed a rule giving cardiology to one group and guess who was not in the group.  The Indian cardiologists sued.  The district court agreed with the physicians and granted an injunction against the hospital.  The circuit court overturned the district court on all due process claims but stated the cardiologist made a good equal protection claim.  The hospital and the individuals involved were not immune from 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.