February 15, 2011 Recent Legal News


Peer Review








University Medical Center v Staff

The Medical Center in Tucson fired three clinical support people and one nurse for snooping on the clinical records of those in the shooting that injured Congresswoman Giffords.  

University of Iowa v Employees

The University fired three employees and suspend two others for illegal medical record snooping.  This was after 13 football players were hospitalized for a muscle disorder.        Top

Peer Review

Lambert v Baptist Memorial Hosp. 
Miss Ct. App.

Dr. C. Jake Lambert, Jr., a cardiovascular surgeon was removed from the staff for multiple incidents of interpersonal problems.  He sued for the usual state causes and lost at summary judgment.  The hospital had him evaluated and found him unfit to practice.  The court stated that the firing was done in furtherance of patient safety.  Since he was employed the hospital could terminate him for cause once he lost hospital privileges.    

Leitgen v Franciscan Skemp Healthcare
7th Circ

Dr. Leitgen, a female OB at the hospital, was paid a salary plus a productivity bonus.  She claimed she was forced to resign after she complained that the productivity was discriminatory since the women OBs did most of the deliveries but the bonus was shared evenly.  The Court also took into account the multiple complaints about Dr. Leitgen by patients and colleagues and denied her case.    

Berrones v Kaiser Permanente
Ca Ct App

Dr. Maria Berrones, a radiologist, was placed on admin leave due to concerns about her quality.  She then had a peer review hearing and after voir dire of the hearing officer and the panel objected to both.  The hearing went on with all objected to in place and she lost.  She also lost in arbitration against Kaiser.  The Court after a mandamus hearing which the physician also lost stated that the hearing officer's past with Kaiser was not important but only the possibility of future employment and in this case there were none.  The court also stated the hearing officers rulings were complete and accurate.          Top


US v Nurses

Eight nurses in the Miami area were sentenced to prison for home health fraud.  The nurses all knew the procedures billed for were either not necessary or never done.  The sentences were from five to 30 months.   

US v Campbell

The University of Medicine and Dentistry of New Jersey had failed to do the required amount of heart procedures to allow it to maintain its Level 1 Trauma Status.  The hospital hired Dr. Joseph Campbell in 2003.  He was to teach part time for $75,000 per year.  The feds state that the usual thing Dr. Campbell did was to refer his private cardiology patients to the hospital for procedures.  This was considered illegal by the government and they sued Campbell.  The court refused a summary judgment since there was a question of fact whether Dr. Campbell had the requisite knowledge that his actions were illegal.    Top


Florida v US
DC Fla

Justice Vinson minced no words and declared the entire Obamacare illegal.  He noted the lack of a severability clause in the law.  The Court went with the government in ruling that the Medicaid aspect was legal.  The Court went against the government on the individual mandate argument stating that the Congress had overstated its authority in violation of the Commerce Clause.  The Commerce Clause requires activity and the law punished inactivity.  The Court also wrote that being outside the Commerce Clause negated the Necessary and Proper Clause.  The case now will be appealed to the Circuit Court.        

Virginia v US

After a judge in Virginia and another in Florida ruled that Obamacare was illegal, Virginia's Attorney General has asked for an expedited ruling by the US Supreme Court even thought the 4th Circuit has the case on the docket for May.  The Justice Department is opposing the request since they state the ruling was based on a state statute and not applicable nationwide.  It is doubtful that the high court will allow the request.  

Center of Medicare Advocacy v US
D Vermont

A suit was filed by the Center as a class action against the Medicare policy that patients achieve demonstrable improvement in functioning in order to qualify for physical, speech and occupational therapy and skilled nursing care.  The question is if the patient could remain stable and not deteriorate with therapy versus improvement.  

Maxwell-Jolly v Independent Living Center
US Supreme Court

The lead case is the one above.  the issue is whether the state can have freedom to cut what they pay for Medicaid care.  The federal courts have blocked any reduction in payments by the legislature in California.  The state believes it is a matter of state sovereignty but the medical community believes that physicians would leave the program if the cuts were made making accessibility impossible.  The Obama administration asked the Supreme Court to turn down the case but they took it anyway.       Top


General Medicine v Manolache
Ohio Ct. App.

Dr. Manolache was employed by the medical group and agreed to a one year restrictive covenant.  He was terminated but one month later was treating patients at the same facilities he was treating under his employment agreement.  The jury agreed with the medical group that the physician was in breach.  However, the physician proved that the group had no contract with any facility and the facilities were either unhappy with the replacement physician or that the group had not even sent a replacement.  Therefore, there were no damages.  

Schueller v Goddard
8th Circuit

The physician was part of an exclusive contract between an emergency room group and the hospital.  After numerous complaints the CEO invoked a condition in the agreement stating the contract was cancelled unless the physician no longer worked at the hospital.  The physician sued and lost.    

Gaalla v Citizens Medical Ctr
5th Circ

A county owned non-profit hospital hospital put in an exclusive contract only allowing contracting cardiologists privileges.  The lower court allowed an injunction against the hospital and the 5th Circuit overturned the lower court stating there was a rational basis for the exclusive contract. The hospital in 2007 gave cardiovascular privileges to Dr. Yusake Yahagi.  He had problems with some cardiologists and complained about them to the hospital.  In response, Dr. Yahagi was given an exclusive contract and the cardiology department became a closed department.  An outside consultant agreed that the move was a reasonable solution to the problems.  The lower court found that the hospital based its actions on economic grounds and not reasonably related to good medical care.  It was found that the surgeon may leave the hospital if this wasn't done.  It is amazing what power some physicians have when they hold sway over a hospital.       Top


Buckwalter v Nevada Board
Loss of Ability to Prescribe

Dr. Kevin Buckwalter of Henderson, Nevada, has sued the Board for failure to detail allegations against him and failure to schedule a hearing so he can defend himself.  He states the Board bowed to political pressure when they took away his ability to write prescriptions.  This came after eight patient deaths were linked to his practice.  However, his attorney signed an agreement to vacate a hearing which would have allowed the physician to defend himself. The hearing was vacated to allow negotiations which continued until Buckwalter filed the law suit. The Board is now preparing for a full hearing in April.  

Texas v Arafiles
Texas Medical Board

In the now infamous case of Dr. Arafiles going after nurses for whistleblowing on him to the medical board, the physician was put on probation for four years and fined $5000.  He also must enroll in a remedial medical education program.  He has one year to take the course and pass a text or his license would be immediately suspended.  As part of the same case the local officials that went after the nurses for criminal charges have now been charged criminally themselves.  Those indicted were Dr. Arafiles, the hospital CEO and two county officials, the sheriff and the county attorney.  

Tennessee v Nurses

Tennessee has taken away the licenses of dozens of nurses for not repaying their student loans.

Illinois v Malik
Impersonating an Attorney

Tahir Malik has met many lawyers.  He has a record for shoplifting and burglary.  He was working on about 60 cases when he was discovered by court officials in Illinois.  It seems he only accepted cash and only worked on low level cases for the past five years.       Top


Marin-Fuentes v Portland Adventist Hospital

The patient was coughing and could not sleep so he drove himself to the hospital.  He made it to 150 feet of the emergency entrance when he crashed his car.  The police were called and when they told the ED about the patient they were told to call 911.  The ambulance arrived and took the patient the short distance on a gurney.  The patient did not survive.  The hospital is defending itself from a federal investigation by stating that since it was a motor vehicle accident 911 should have been called.  This flies in the face of the police story. 

Ward v Summa Health
Ohio Supreme Court

 Ward filed suit against Summa after he was told that he may have gotten Hepatitis B during a surgical procedure.  As part of the discovery process he wanted the medical records of his surgeon.  This was refused and the high court said that although patient physician relationships are sacrosanct, in this case the physician was a patient and therefore his records could be released.    Top


European Union v Sonmez

Dr. Yusuf Sonmez was arrested in Turkey for removing organs and selling them on the open market.  After his arrest he was released pending trial.  He allegedly worked out of a Kosovo clinic.  Others thought to be in the conspiracy were high ranking physicians and officials of the Kosovo government.        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.