February 15, 2003 Recent Legal News
 | |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
|
Maryland v Doctor's Community Hospital
The state of Maryland has asked for sanctions against Doctor's Community Hospital in Lanham, Maryland for keeping a mentally retarded person in restraints in the emergency room for 11 days. They were attempting to find a place for him in another facility. The hospital is not apologetic. They state it was necessary to do this since an on call psychiatrist had deemed him violent and in need of involuntary care. The hospital has no licensed psychiatric beds. The medical record showed the person was sedated and calm for most of the eleven days. The hospital did not follow their own rules. They did not document valid reasons for restraints over four hours. They did not try less restrictive alternatives. They did not renew the order daily but every other day. The State has recommended the CMS sanction the hospital. Eventually he was sent to a group home and is now fine. Top
A medical marijuana advocate in California was convicted in federal district court of conspiracy to grow marijuana. The jury was frustrated by the judge who refused top allow into evidence any talk of California law, which allows the use of marijuana for medical treatment. When they were interviewed, they said they were in favor of the defendant but had to do what they did under the federal law. They did convict on a lesser charge of growing more than 100 plants rather than more than 1000 plants. This will be appealed to the 9th Circuit.
In the meanwhile the jurors have recently begun to find out more about Mr. Rosenthal, who they convicted. They have found that he actually was growing the marijuana for the city of Oakland. The jurors are writing to Mr. Rosenthal to apologize. Even the NY Times has in an editorial blasted the government in this latest sham to threaten physicians and medically needy people.
Several days after the verdict, the San Diego City Council debated and passed a motion to allow medical marijuana for those seriously ill and with a physician's authorization (not prescription). This seems like a "grass" root revolt. The perceived law would limit the amount of marijuana that could be utilized for self use. The San Francisco Chronicle is suggesting that California be the grower of choice for the marijuana. This would help cool the Feds ardor for the Gestapo tactics. Top
Ravnikar v Bogojavlensky
Mass. Supreme Ct.
A patient of the defendant wanted to see the plaintiff. The patient was told the plaintiff was dying of cancer. In fact she was a breast cancer survivor. The unanimous decision of the high court ruled that defamation was proper since it may have been spoken out of competition. The court ruled that this was a special type of slander that defamed the person enough that they do not need to show damages to sue. Top
Haynes v PruCare
5th Circ.
Hayes, a diabetic with circulatory problems, continued to go to his PCP of long standing even after he joined the HMO. He ended up with a foot abscess and was referred to a wound center. PruCare refused the treatment since he needed a referral from a PruCare PCP, instead he got an amputation. He sued the HMO in federal Court due to diversity of parties and the court ruled for PruCare under ERISA. The 5th agreed. They stated that if a case has both administrative and medical malpractice applications and the delay in administrative functions caused an indirect impact on treatment, ERISA rules. This case, in my judgment, had a direct and not an indirect bearing on treatment and should have been allowed. Top
Tiernan v Charleston Med Ctr.
W. VA Supreme Ct.
Tiernan, a nurse at the hospital, invited a reporter to a meeting of hospital employees. She was fired for that act. In trial court, on all the usual charges, she lost in summary judgment. The Court of Appeals the summary judgment on the issues of public policy and breach of promise. The trial court continued its summary judgment on those issues. The high court ruled for Tiernan again. She had worked to overturn hospital policy of decreased nurse staffing and decreased patient safety. The Court stated there appears to be a direct correlation between the events and the hospital's rationale had been pretextual. This is the second case against the hospital for basically the same thing that the hospital has lost. Tiernan also showed enough evidence that the hospital stated that there would be retaliation if nurses spoke to reporters and therefore had broke their promises. The case goes to trial or more likely settlement since the hospital would not like to have its dirty laundry in public.
Schell v LifeMark Hosp of Mo.
Mo. Ct. App.
Dr. James Schell was signed a contract with the hospital stating that he would provide medical services in return for the take over of his practice by the hospital. He was to paid according to payor mix. If the mix changed there would be a renegotiation of the payment. If there was no renegotiation within thirty days of the renewal of the contract, this would be deemed a termination without cause which would give rise to severance pay. Schell notified the hospital of significant payor changes and recommended several payment changes. These were all rejected and Schell then instituted the termination without cause and requested pay of $199,284. He sued and the trial court voided the amount owed since both parities violated the covenant of good faith. The higher court reversed. They stated the contract was not ambiguous and that if no agreement was reached by 30 days after the end of the contract Schell would be entitled to severance pay. The court agreed that Schell was attempting to increase his pay but this is not bad faith.
Cookeville City v Humphrey
Tenn. Ct. app.
The city hospital board of trustees decided to close the radiology section and go to an exclusive contract. The medical staff supported the present radiologists to be the exclusive group. This group had previously formed a LLC to provide outpatient radiology services in competition with the hospital. There was an impasse in negotiations and the radiologists stated the closure was illegal and against the bylaws. The Tennessee law allows the closure of the hospital section for competitive and economic reasons and the court so ruled. The appeals court agreed. The doctors had no due process medical staff rights to a fair hearing and the public hospital could close the section. It did not overrule but differentiated the Lewisburg v Alfredson a 1991Tennessee Supreme Court case that required a hearing. It also said the last word is to be from the Tennessee Supreme court. Top
Monga v Sec. Mutual Life Ins Co.
Dr. Monga, a solo practice surgeon, applied for and was accepted by Security Mutual for a disability policy of $3000 per month if he could not perform the duties of his occupation and was under the care of a physician. Dr. Monga had two heart attacks between 1991 and 1995. In 1998 he had angina while doing surgery and began to reduce his workload. In 1999 he stopped practice after he was advised to by his PCP and cardiologist. Dr. Monga provided all the necessary documentation and was told his prognosis was good by an insurance doctor that never met with him nor spoke to his physicians. Security Mutual denied benefits and Dr. Monga sued. The court granted Dr. Monga summary judgment on his breach of contract claim. It appropriately threw out the superficial decision of the physician. The court also granted Security Mutual summary judgment on the bad faith claim. This did not allow the consequential damages. Case to court. Top
Class
Action v Courtney, Bristol and Lilly
Settlement
In the infamous drug dilution case involving a Kansas City, Missouri pharmacist Robert Courtney, a settlement of $71 million has been reached. Courtney is serving 30 years for diluting cancer medication and selling the excess. The drug companies are paying since under Missouri law if they are found even 1% liable, they would have to pay the entire judgment. A bad law in a trial lawyer's state. The terms of the settlement were supposed to be confidential but $48.55 million is being paid by Eli Lilly and $23.55 million by Bristol Meyers Squibb. The basis is that the companies knew or should have known that the pharmacist was selling more medicine than he was receiving. The settlement happened a day prior to the first of many individual cases going to trial. The attorneys will receive an amount of money depending upon their contingency agreement with the plaintiff.
Sinclair
v Roth
NJ Sup. Ct.
Sinclair had chest pain and went to his PCP. The PCP referred him to a cardiologist for a stress test, Roth. Roth stated the test was normal and reported same to the PCP. Two weeks later Sinclair died. At trial the physician won since the jury believed his experts over the plaintiffs. The plaintiff appealed on the basis that the physician must give the report to the patient. The Appeals court said there is nothing that requires a referred to physician to give test reports to the patient. The specialist does have a duty to communicate with the treating physician.
Johnson
v Univ. Hosp. Cleveland
Ohio Ct. App.
In a medical malpractice suit the plaintiff sought an incident report regarding the fall of the plaintiff while at the radiology suite. UH stated it was protected and the lower court overruled the hospital. The appeals court ruled that the trial court should do an en camera look at the report to determine if it differs from the medical record in the events in the incident report. Since the events leading up to the fall were not documented in the medical record, nothing to state she fell, the incident report was allowed. There were some facts in the incident report that did not have to be disclosed and these were ordered redacted.
Settlement
Southern California
In 1998 the plaintiff was 56 and had GI bleeding. She was hospitalized and had a sigmoid exam. No other tests were done to determine the cause of the bleeding. Over the next two years she continued to have anemia typical of blood loss which required blood transfusions. In 2000 she again had a sigmoid exam and again nothing was found. Two months later she had a colonoscopy which was described as normal. In 2001 she had a CT scan which showed a large mass in the right hepatic flexure of the colon. Another colonoscopy was done and a carcinoma was found. A colectomy showed a 13 cm. lesion with invasion of the ileum or a Duke C. Chemotherapy was begun. The patient settled for $400,000. It always boggles my mind when physicians do things as stupid as this. This lady deserves more money, which is hard for me to say.
President
v Jenkins
NJ Superior Ct.
A patient injured during childbirth sued the physician. The physician had no malpractice insurance since a new claims made policy did not cover prior acts. The patient sued the hospital for negligent credentialing for allowing him to practice without adequate insurance. The court ruled the hospital was not liable since it had no duty to ensure by way of monitoring that the staff physicians had malpractice insurance, even though the bylaws stated it was necessary.
Arrington
v Galen
La. Ct. App.
An, ED independent contractor physician failed to adequately diagnose a pulmonary embolism. The physician and the hospital were sued. The jury found against the hospital. The court of appeals agreed since the hospital had control over the independent contractor physician. The contract between the physician group that hired the physician and the hospital had provisions so that the CEO had to approve all physicians who worked at the hospital, the hospital was responsible for the billing and maintaining the records, the hospital provided the space plus all supplies and the hospital retained control over all ED personnel. The physicians also had to abide by the medical staff bylaws. This is true in every hospital in the US and therefore if allowed to stand and be followed this case will make every hospital liable for every act by every physician. The only distinguishing feature is the CEOs approval of the physicians. Top
Wilkinson
v Duff
W. Va. Supreme Ct.
Wilkinson went to a weight loss clinic and saw a physician Dr. Duff. He prescribed phentermine but did not know that the patient was seven weeks post partum. The patient died from a coronary artery dissection. The plaintiff's family filed a malpractice action against the clinic and physician. They in turn filed an action against the drug company for not labeling the medication as potentially dangerous to prost partum women. Duff provided no evidence that the drug was dangerous and relied on the evidence presented by Wilkinson. The drug maker won a summary judgment and Duff appealed. He lost there too. The court ruled that for there to be a duty there must be whether it is foreseeable that the product would be dangerous if distributed without a warning. Duff failed to present any evidence that the drug was unsafe or had an inadequate warning. Duff had admitted in deposition that he had breached the standard when he gave the drug to a postpartum patient. Since the last negligent act without which the injury would have occurred is the proximate act, Duff was the party not the drug company. Top
Hunt
v Lincoln Mem. Hosp.
8th Circ
The hospital won again. A plaintiff attempted to invoke EMTALA by claiming that subsequent problems would not have developed if the hospital and the ED physicians had performed an adequate screening exam. The court, like all the others, stated that EMTALA is not a federal malpractice statute. The physician gave the patient instructions and his claim of incorrect treatment is not a valid claim. Top
Moore
v Gunnison Valley Hosp.
10th Circ.
Moore, MD was a member of Gunnison Hospital, a public hospital, since 1995. Three years later the hospital administrators appointed an ad hoc committee that suspended Moore. This was lifted five days later by a medical staff vote. There was then a second ad hoc committee appointed that relied on the same information as the first and suspended Moore. Moore was not told of the ad hoc committee not given any chance to appeal. He sued the administrators and the committee stating his 14th Amendment rights of due process were violated. The defendants moved to dismiss due to absolute immunity in disciplinary actions. They lost in the lower court. The 10th agreed. The process lacked the characteristics of a judicial body entitled to absolute immunity. The count stated that there was no evidence that there was any imminent danger for summary suspension. The court also found that all the peer reviewers were his competitors and therefore were not independent. There was no right of appeal for letters of admonitions nor for summary suspensions.
Bergwall
v MGH Health Svs.
D. Md
A patient died shortly after transfer. The family sued for inadequate screening and failure to stabilize. The court found for the hospital since the hospital followed its standard screening procedure. The court stated it does not make any difference if the hospital could have done more tests nor if they reached an accurate diagnosis. The question regarding transfer is whether the emergency medical condition was likely to deteriorate materially during the transfer as known at the time and the diagnosis, even if erroneous.
Doe
v Grant
La. Ct. App.
A cardiologist was summarily suspended after an angioplasty death. The MEC recommended the suspension. The peer review committee recommended restoration of the privileges and the Board upheld the MEC, overruling the peer review committee. The cardiologist claimed that the outside consultants that reviewed his cases only limited information and had also received opinions from three competitors. The lower court jury agreed and awarded $6 million. The judge reversed the verdict on legal grounds and that there was not genuine issue of fact that the jury should consider. The court of appeal agreed since the information never left the peer review process, the defamation had never been published. This is an unfair result since it was published to the NPDB. This also shows that if a hospital has political muster they can win a lost suit. The trial judge, if he really believed what he said and was not doing the political bit, would have ruled in the beginning that there was no triable fact and therefore no trial. The second bad decision by the Louisiana Court in this section. Top
Ill.
Med. Board v Meyer Medical Phy.
Settlement
The defunct Meyer Medical Physicians group, Ltd of Merrionette Park, Illinois has agreed to pony up $120,000 to safeguard and copy medical records abandoned when the group folded. The medical board suspended the licenses of the eight partners of the group due to the abandonment of the records but stayed the suspension until February 19. There are currently 5000 requests for records and x-rays.
Women
v Univ. Health Associates
W. Va. Court
Three women sued the University Health Associates of Morgantown after one of their employees took the three medical records from the hospital and discussed them in the local bars. The hospital felt the employee was acting outside of the scope of his employment when he did this. The jury did not agree and awarded each of the three women about $750,000. Top
Merin V Barlow
Hospital
Settlement
Merin sued the Los Angeles' Barlow Respiratory Hospital for emotional distress. She spent a large amount of time at her mother's bedside at the hospital. The mother had two surgeries for a subdural hematoma. During her time at the hospital she was critical of some of the care her mother was receiving. At one point she refused to leave the room while the nurses moved the patient. A hospital administrator, who obviously is not playing with a full deck, did a citizen's arrest and called the police, who physically removed her from the hospital. Merin was the conservator for her mother and so was entitled to 24 hour access unless the mother was undergoing a serious procedure. The hospital attorneys for some reason argued that Merin was interfering and trespassing. Merin accepted the offered settlement since it shows the hospital was wrong, she can discuss the case but must state the hospital does not accept liability. Top
US v Tenet
Settlement
Five Tenet hospitals in Florida have settled with the government over upcoding on pneumonia billings. The total fine plus interest will be $4.15 million. This settlement does not include the January 9, 2003 claim by the government that Tenet collected falsified diagnosis and collected $115 million on that.
US v
RFK Med. Center
Settlement
RFK Medical Center in Hawthorne California has paid $2 million to settle a whistleblower suit. This was for upcoding for pneumonia. It is interesting that the whistleblower in this and three other suits was Health Outcomes Technology, a health software company. They received $220,000 in the other suits combined and $280,000 in this one.
US
V Johns Hopkins
Johns
Hopkins has agreed to pay $800,000 for the inappropriate billing under the PATH
program, where attendings were billing for services performed by others.
The settlement also requires the University to improve their documentation of
the care provided by the attending
staff. Top Penn.
v Tarwater, MD Dr. Doyle
Tarwater was arrested and charged with exchanging prescriptions for sex.
He offered an undercover cop Percocet for sex. If convicted of all charges
he gets 24 years in the pokey where he can have sex
cheaper. 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.
Penn. Lower Ct.