February 15, 2002 Legal


Patient Culling




Medical Malpractice

Informed Consent


Physician v Insurer


Fraud and Abuse

County Liable for Jailing TB Patient

Peer Review


Patient Culling 

A patient in San Diego is suing the Scripps Clinic for their policy of not seeing any patient that has filed suit against any of its physicians.  The patient had sued two physicians for malpractice related to her treatment from an auto accident.  Scripps then requested Health Net, her insurer, to reassign her to another provider.  The clinic states that it is a potential conflict of interest to treat a person who has sued them. They believe that since they have been sued for a lower standard of care the patient would be better off seeking care elsewhere.  The patient's husband was also dropped from the clinic.  The patient's attorney believes the policy violates the antitrust and fair-business statutes.  He also states that it serves to discourage patients from suing.  There are exceptions to the policy if the patient is receiving care that is life saving and emergent.  Several "ethicists" also blasted the Clinic's policy.  Of course they don't see patients and are ivory towered.  There is a difference between what two people may see as morally right.  Whether it is morally right or wrong is not an issue.  The issue is, is the policy legal.  All insurance policies and IPAs have clauses that state that patients may be switched for inability to get along with the medical provider or vice versa.  There is no law that states anyone doctor, attorney, etc. has to take any person as their client, unless they are obligated to under a contract.  They cannot discriminate against a patient for race, religion, creed etc.  Being a suer is not a protected class.  There is no antitrust aspect as there is no collusion between two or more persons.  The entire clinic is an integrated entity and so is only one person.        Top


US v Nelson

Dr. Ricky Joe Nelson of Oklahoma City was convicted for internet prescribing of a controlled substance. After the physician prescribed the medication the order went to a pharmacy in Norman that did the shipping.  Dr. Nelson has had his license suspended and the pharmacy has closed.  The sentencing is in six weeks but the doctor is considered a flight risk and remains in prison until that time.

US v Sawaf

Dr. Sawaf, a urologist, was convicted of over prescribing OxyContin.  He was accused of eleven counts and convicted on eight of the counts.  The verdict was after 7 hours of deliberation.  The doctor had been practicing in Harlan County, Kentucky for several years.  Prior to this he had been in Michigan where he was convicted of tax evasion and is paying $114,000 in back taxes.         

US v Cubria

In a plea agreement Cubria became the fourth physician to be guilty in the Chicago Edgewater Hospital case.  He admitted to performing hundreds of unnecessary cardiac catheterizations that led to two deaths.  The government agreed not to bring felony murder against him if he would plead guilty of a single charge of racketeering and the above admissions.  Edgewater paid $500,000 annually for three years of advertising for Cubria's practice.  He faces 18 years in prison and a $250,000 fine.  The hospital is closed due to monetary problems and no one will purchase it with the federales hovering close by.           Top


Crowell v  Downey Hosp.
Cal. Ct. App.

A contracted physician was told to stop providing services in the ED.  His contract had an arbitration clause which included a term that allowed judicial review to determine whether the award was supported by the evidence.  The physician asked for arbitration and this was granted by the hospital.  The physician did nothing for two years and then went to court to have a judicial review of the merit of the case.  The trial court ruled that there could be no judicial review.  the appeals court agreed stating that California has an Arbitration Act the preempts the field and does not allow for judicial review except in rare circumstances.  The reason for arbitration is for the parties to believe in the finality of the process.                  

New Atlanta ENT v Pratt
Ga. Ct. App. 

Five physicians quit and started their own practice in violation of a restrictive covenant in their employment and shareholder contracts.  The Clinic sued and the trial court ruled the covenants were unenforceable.  On appeal the Court agreed because the Clinic continued to open new locations and so there could not be any reasonable territorial limit for the covenant.  Basically restrictive covenants are against public policy and the court was looking for a way to not enforce the covenant. 

Jaraki v Cardiology Assoc. 
Ark. Ct. App.

Jaraki was contracted to work for the group for two years unless terminated by either party with ninety days notice.  The contract contained a restrictive covenant to prevent Jaraki, if terminated early by either side, from practicing for a 75 mile radius.  Jaraki quit and the group sued to enforce the covenant.  The group won in trial court but at the appeal level they lost.  The covenant was unenforceable since it offends public policy.  The court stated that the party challenging the covenant needs to show it is unreasonable and against public policy.  The court stated that the group did not have a valid reason to enforce the covenant since there was not any trade secrets or any confidential business information.  The court also stated the 75 mile radius was too broad since it included Memphis, a large city outside of the group's referral base.  The group should look to the replacement of it's attorney for allowing the clause and for the cost of the appeal.

Nieto v Kapoor
10th Circ.

Kapoor was a medical director of a radiation oncology unit at a state owned facility.  He and the facility were sued in state court by multiple employees for a hostile work environment causing emotional distress.  This was removed to federal court and Kapoor was found to have created a hostile work environment, was a state actor and was liable for $3,750,000.  The 10th Circuit agreed.  They stated that he was working under state law and the facility could not shield itself by hiring an independent contractor.  The court also looked at the sufficiency of the evidence and stated that this was not a close call.  Kapoor's actions were intentional, willful and malicious.                

Zsigo v Hurley Med. Ctr.
Mich. Trial Ct.

Zsigo was confined to the hospital for a bi-polar disorder and while in restraints was sexually assaulted twice by an employee.  The jury awarded $1.25 million for assault and battery.  The employee is in jail.  The hospital is appealing since they believe the assault was consensual.  The ability of one to consent who is bi-polar, on meds and in restraints does not pass the laugh test.              

Ayash v Dana Farber
Mass Trial Ct.

The physician was fired after being accused of covering up the death of chemotherapy patients.  She was acquitted at the hospital of those charges and then let go.  She sued the Boston Globe for damages on a defamation case she won and the hospital  for retaliatory termination.  The hospital states that the reason for the physician's dismissal was the hospital's loss of money and not her suit against them. The jury did not agree and awarded Dr. Ayash $4.2 million against the paper, hospital, a former reporter and a former administrator, the chief of staff.  The Boston Globe would not tell it's source so automatically lost.  The Globe lost $1.4 million, Dana-Farber $1 million, Livingston the Chief of Staff lost $720,000 for emotional distress and $120,000 for lost pay and injury to her reputation.

Scott v SSM Healthcare St. Louis
Mo Ct App

In a malpractice case Scott was injured in a car accident.  He went to the ED and was examined by the physician who ordered a head CT.  The radiologist stated the CT was normal and several days later Scott collapsed and was taken to a different hospital. A new CT was done and head injuries discovered.  Suit was filed against the original hospital, the ED physician and the radiologist.  They were by contract independent contractors.  The jury and the Court of Appeal all stated the hospital was responsible since the hospital held itself out as the treating entity.     

Hohenleitner v Quorum
Mass Supreme Ct.

Hohenleitner, the plaintiff, went to the ED of Quincy City Hospital with angina (chest pain).  She was placed in a treatment room an examined by an RN triage nurse who examined and gave her oxygen, and a cardiac monitor.  An EKG showed an acute MI but the nurse did not tell anyone for 40 minutes.  the patient had a cardiac arrest and needs a heart transplant.  She sued the nurse, and Quorum, the hospital manager, for malpractice.  The jury found the nurse guilty and Quorum also guilty for vicarious liability, even though the nurse worked for the city.  The judge overturned the jury on Quorum and the plaintiff appealed.  The supreme court agreed with the judge since there needs to be the master the right of direction and  control not just supervision.  Under the agreement Quorum had the right of setting salary and benefits but the hospital retained the right to set patient treatment policy.      

Crowell v Downey Hospital 
Ca App. Ct.  

Crowell ran the ED at Downey Hospital and after a disagreement he was discharged.  He asked for arbitration as was in the contract.  The problem was the arbitration clause stated the result could be looked at by the courts to determine the legality of the result.  The appeals court ruled that since the state arbitration act is the top dog and it does not allow the judicial review the entire clause is void.  This result will send all attorneys back to their drafting to remove all clauses stating the judicial review may be done.  Crowell may now either appeal the ruling or go back to court and sue the hospital.            Top


Brown v State
Wash. Ct. App.

Brown was a licensed chiropractor who let his license lapse.  He continued to treat patients by having them sign a form agreeing that they are part of a religious sect.  He was also part of the sect and was treating them under freedom of religion.  One patient had a stroke in the office after a manipulation.  She sued and stated she was never told he was unlicensed or about the potential for stroke with the manipulation.  The Washington Board charged Brown with practicing without a license, misrepresentation, poor care in manipulation, failure to warn, and failure to treat when the patient had symptoms of a stroke (he never called 911, but instead called the patient's sister to come for her and did not indicate it was an emergency).  The Board revoked the license for ten years and fined him $30,000.  Brown appealed and lost.  The Board still had jurisdiction even though he was not licensed since he could have been licensed by just filling out a form.  He also lost on bias since the Board consisted of his peers.  The court also threw out the freedom of religion aspect stating there is a limit to freedom of religion.            Top 

Medical Malpractice

Ramirez v McIntyre
Tex. App.

In a bad case decision the Texas Appellate Court stated that a physician (McIntyre) needs to show that if they are covered by the Good Samaritan Act they not only did not but could not bill for their services.  This is an impossible standard since anybody can bill for their services and emasculates the Good Samaritan Act.  The patient went into labor at a hospital and the physician with no prior connection to the patient and not on call came to her aid.  The delivery was difficult and the baby ended up with an Erb's Palsy.  The dissent in the case said it best "the purpose of the statute is to encourage physicians and other health care professionals in a hospital to render emergency care."   This case MUST be appealed or there will be no emergency care rendered.   

Coleman v Deno
La Supreme Ct.

A patient sued the physician for malpractice and EMTALA violations.  The patient was transferred to a charity hospital for arm cellulitis secondary to diabetes and eventually needed an amputation.  The EMTALA violation was tossed since there is no private right to sue physicians, only hospitals, under EMTALA.  The jury returned a $6 million verdict on the malpractice charge. The trial court reduced the damages under the states malpractice act to $400,000.  The appeals court reversed and allowed the entire $6 million verdict since they believed this represented a new tort; an intentional tort for patient dumping which would not be covered under the malpractice act.  The Supreme Court reversed the appeals court and stated they could not make a new tort.  This was a pure malpractice claim and as such the act applied.                   

Warren v Burris  
Ill. Ct. App.

Warren had abdominal pain, nausea and vomiting.  He at first was diagnosed as anxiety and asked to see a psychiatrist.  He asked for a second opinion and was found to have gall stones.  He underwent a cholycystectomy and appendectomy by Burris.  He did not improve and he sought opinions as to the reason.  It was discovered he had a clip on the right hepatic duct.  Warren sued Burris for malpractice two years after the surgery.  The trial court granted summary judgment for Burris under the statute of limitations.  The Court of Appeals reversed since it needs to be determined by the trial court as to when Warren had knowledge of the injury, when he got sick or when he found the clip was the cause.   

Case not Filed

In a case that settled before filing a cardiologist in the Los Angeles area lost $350,000.  The facts were that a 58 year old had a minor anterior wall myocardial infarct.  The next day the cardiologist found a 100% blockage of the LAD.  The cardiologist attempted 15 times to get a guidewire thru the occlusion and eventually punctured the artery causing a pericardial tamponade.  The patient underwent emergency surgery and ended with hypoxic brain damage.  The cardiologist also did not recognize the tamponade and did not do a pericardial aspiration. The plaintiff asserted that the attack was over and the collateral vessels already were working so there was no reason for the dilatation and attempt at stent placement.      

Anjarwala v Rush Presbyterian 
Ill. Trial Ct

The patient, a 54 year old male, was transferred to Rush Pres after surgery at Rush North Shore Hospital.  Two days after transfer a compartment syndrome was noted and a faciotomy performed.  The delay of diagnosis caused a leg amputation one month later.  The patient won $22 million.  

Kalaba v Gray
Ca App Ct.

In a potential case of legal malpractice the plaintiff sued Gray for not finding an adrenal tumor.  At trial she called as an expert physicians that she had previously de-identified as experts and her treating physicians who had not been named as experts.  She was given time by the court to get her experts but at the time of her second trial did the same thing.  Dr. gray asked for and received a non-suit.  The appeals court agreed that experts need to be named in advance so deposition by the opponents may be performed.  The doctor was given costs on appeal.    

Harish v Spere Drake Ins. Co.
W. Va. Trial Ct.

  A judge ruled that after Dr. Harish sued and won his case against the insurance company for refusing to defend him in a malpractice suit and refusing to pay a legitimate claim, he would also get his attorneys fees.  This was even though the fees were contingency based.

Basrak v Seckler & Mouli
Cook County Circ. Ct.

 In an ongoing trial the plaintiff is suing Seckler, a urologist and Mouli, a radiologist for malpractice due to not diagnosing a horseshoe kidney and the wrongful removal of a good entire horseshoe kidney.  The mistake was found post-op when he wasn't making urine.  He is now on chronic dialysis.  I truly do not understand why this case is on trial and has not settled. This type of refusal to settle makes premiums go up.  Top

Informed Consent

Parker v Harper
La. Ct. App.

Parker's sought treatment for their daughter with seizures from Harper, a neurology and psychopharmacolgist specialist.  He prescribed Dilantin three times a day.  The conflict is whether or not he informed the Parkers of the potential side effects of the medication.  He states he did and in their affidavit they say no. The records supported the physician. The trial court granted summary judgment for Harper for malpractice and informed consent.  The Court of Appeal reversed on the issue of informed consent.  They stated that a state statute states that a physician must obtain informed consent where the potential for loss of function of any organ or limb might occur.  The physician does not have to get informed consent for routine prescriptions.  Here, since a significant problem occurred, loss of vision in one eye, the requirement of informed consent applied.  Since there is a genuine issue of fact that needs to be decided, whether or not there was informed consent given, the underlying case needs to go to trial on this basis.

Morady v Gorinstein
Cal. Ct. App.

Morady, had TIA and Gorinstein prescribed intravenous anti-coagulant therapy.  She did not improve and returned to the ED one week later with the same symptoms.  She was placed on Coumadin and while taking the medicine she had a brain hemorrhage with significant injury.  She was found at that time to have cerebral amyloid angiopathy, CAA.  She sued since she was not told that Coumadin might not work on CAA and might be harmful.  The jury found for Morady and Gorinstein appealed.  The higher court stated that the only testimony regarding the informed consent issue was Gorinstein's.  There was no rebuttal to his testimony that it was his usual practice to tell patients about the side effects of Coumadin.  If there was no rebuttal then he wins.            Top


Mattice v Memorial Hospital
ND Ind.

Mattice was an anesthesiologist at Memorial.  He checked him self in to a different hospital due to panic attacks and depression.  He returned to work with no restrictions and on mo medications.  The following year a patient under his care died and he was suspended and a peer review process was begun.  The peer review committee recommended Mattice be allowed to return to work but the MEC refused to allow him to do so.  The Board did allow him to return under the ADA with monitoring and testing.  Mattice then filed an ADA action against the hospital and requested the peer review documents.  The hospital moved to deny the request.  The district court dismissed the suit and so did not allow the discovery of the peer review records.  The Court of Appeals reversed and reinstated the suit.  The district court then stated that the peer review records were not protected since the federal anti discrimination factors were stronger than the state peer review protection laws.          Top

Physician v Insurer

Mendez v Blue Cross & Shield of Fla.
Fla. Cir. Ct.

In a famous Florida case the Blues removed Mendez and others from it's panel for economic reasons.  Mendez went after the company and won in the court of public opinion and maybe the legislature but lost in the legal system.  The contract stated either side could terminate without cause.  The terms were plan on their face and so were not wrongful.  The court dismissed the public policy aspect by not following the California Potvin case and instead relying on an Ohio case, Sannarco v Anthem.  This case stated that since the at-will termination did not forbid Mendez from treating all patients and Mendez could practice where and when he pleased.  They ignored the Potvin argument of a significant amount of the practice was impacted and therefore there should be due process. Mendez did show that the Plan's letters to patients telling them they must switch to a different provider and not telling them they could keep Mendez by switching companies was enough to continue to sue under the tortious interference. GO GET THEM!!

Gammill v Provident Life Ins.
Ark. Supreme Ct.

Gammill , an invasive cardiologist, had two disability insurance policies with Provident.  The policies were to pay if there was a total disability.  Gammill had an auto accident which allowed him to practice non-invasive but not invasive cardiologist.  Gammill put in a claim for payment but was denied since he could still practice as a cardiologist, if not an invasive cardiologist.  The trial court ruled for Provident.  The Supreme Court reversed ruling that to be totally disabled it is only necessary to show he is unable to perform one or more of the substantial or material acts of his occupation in his usual and customary manner.  He can continue to work at his job and still be totally disabled if he can work only with the aid of his fellow employees (Colonial Life v Whitley, Ark. Ct. App.).  Since Gammill could not perform any invasive procedure, do hospital rounds or perform cardiac exams in the usual manner he was totally disabled.  I had a similar case with an invasive cardiologist with cervical disc disease.  The insurance company tried to stiff him but backed down since their own policy terms worked against them.            

Dorsey v Provident Life    
ED Pa.

Provident lost another disability case.  Here, the plaintiff was a marketing director for a payroll company.  She became ill with fibromyalgia and applied for disability benefits.  Provident investigated and concluded that insufficient data supported the diagnosis. The rheumatologist wrote a letter to Provident in the patient's favor.  Another physician hired by Provident examined Dorsey and determined she could do light work.  Provident denied the claim and Dorsey appealed and supplied multiple other documents supporting her claim.  Again, the physician for Provident affirmed her earlier statements and Provident again denied.  The District court under ERISA ruled that the decision can be looked at under the arbitrary and capricious standard.  The court stated that although they had to review the administrative record, they could also consider evidence outside the record when evaluating the level of an administrator's conflict of interest.  The Court then went on to issue a summary judgment for Dorsey since Provident had funded and determined benefit eligibility there was a heightened arbitrary and capricious standard.  The court noted that the physician hired by Provident would come to the same conclusion both times the patient was examined and that the person reviewing the claim could not reverse the decision. 

Hangarter v Paul Revere
Ca. Dist. Ct.

A chiropractor purchased a professional disability insurance policy from Paul Revere.  The company was purchased by UnumProvident (isn't it amazing how the same name continues to appear).  The policy was to pay $8000 per month if she could not practice as a chiropractor.  She was injured in an auto accident and claimed exacerbation of a previous back injury and the inability to practice chiropractic medicine.  The company paid the benefits for about one year and then stopped.  They believed Hangarter could return to work.  She ended up on welfare to get enough money to support her children.  She sued the company and won $2.7 million in compensatory and an additional $ 5 million in punitive damages. The insurance company attorney didn't think the verdict was fair or right since its paid expert stated Hangarter was not permanently disabled and was able to perform all her professional duties.  I would not buy a disability policy from Provident and I would hope no one else would either. 

Texas v PacifiCare

Texas is again going after the managed care organizations.  This time it is not directly for their illegitimate withholding of payments, but for not supervising their doctor networks.  The attorney general is stating the HMO has violated the state Deceptive Trade Practices and Texas Health Maintenance Organization acts.  They have done this by not paying the claims in a timely manner making their physician networks go broke and causing patient harm.  Tenet has recently sued PacifiCare for $18 million in back claims.  They had previously sued PacifiCare for $47 million in past due bills.  California has already litigated this and found that the HMO does not have to pay twice when the physician group that takes full risk goes under.  The question I have always asked is if the group takes full risk, what does the HMO do except take the money off the top for nothing.      

Inland Medical v HMO PrimeCare
Riverside California

 A group of eight physicians working for Inland Primary care Medical group had a signed contract with HMO PrimeCare Medical Network, Inc. to provide services for the HMO for pay.  PrimeCare backed out of the contract and were sued for breach of contract.  The physicians won $3 million.  Top

Product Liability


Sulzer Medica, the Swiss manufacturer of artificial joints has sweetened its after for claims settlements..  Sulzer has been sued by multiple individuals for product liability due to the inadvertent contamination of its product with oil that prevented the binding of the hip or knee and the connective tissue.  Sulzer stated that they will place in a pot for all to share $735 million of which $425 million would be cash and the rest in convertible callable instruments.  The concept was approved by a federal judge but some attorneys objected, for the usual greedy reasons.  Sulzer has now upped the amount to $1 Billion by having the remainder from insurance and its former partner Sulzer AG.  The company believes the standard settlement will be $200,000 per patient.         Top

Fraud and Abuse

US v St. Mary's Hospital

St. Mary's Hospital in Grand Junction Colorado has paid a settlement of $1.2 million for pneumonia upcoding.  This is a focus for the Feds this year. The hospital was billing for an upgraded DRG code of 079 when it should have been billing at the simple pneumonia DRG code of 089.  This is a difference of $2700 per case. 

Miss. v Memorial Hosp. of Gulfport Miss.

 The hospital paid $13 million to the state for their share of the disproportionate Medicaid payments.  The hospital had refused to pay the amount the state stated it owed for 2000.  It sued the state and this threatened the entire state's funding.  The state settled for the above amount although they thought the hospital owed $21 million.  Top

County Liable for Jailing TB Patient

Souvannarath v Hadden et al.
Ca. App. Ct.

The patient had TB and was non-compliant in her treatment with triple drug therapy.  She was placed in jail under quarantine and isolation under order by Hadden, the Fresno California County Health Officer.  Hadden and the County were sued for the involuntary jailing as well as attorney fees.  The law prohibits the use of the jail as a detaining facility and the plaintiff won both on the getting out of jail and the attorney fees.  The County appealed and lost again.  Again all fees for the appeal were awarded to the plaintiff.  I doubt whether any one else will attempt this illegal act.        Top

Peer Review

Jensen v Salinas Valley Memorial 
Cal Ct App

Jensen applied for and was granted temporary privileges on the medical staff.  Multiple complaints were lodged against her and after several warnings she was terminated from the staff.  the judicial review committee recommended reinstatement but the MEC voted for termination.  Jensen appealed the decision to the court who upheld the decision.  The physician had due process as she was twice warned and then had a due process hearing.            Top


Loubeau v South Florida School of Med.
Fl. Dist. Ct.

A black physician half-way through his surgical residency was terminated from the program.  The school states he was terminated due to serious problems that hurt patients plus being uncompassionate and emotionally unstable.  Dr. Loubeau states that it was due to racism.  South Florida has been sued for racial problems several times.  Dr. Loubeau is now an anesthesia resident in another program.        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.