February 15, 2012 Recent Legal News


Peer Review and Employment






Brooks v Integris

In a class by itself.  Integris Canadian Valley Regional Hospital in Yukon, Oklahoma, was stupid enough to accept a $500,000 gift from Garth Brooks for naming a women's health site after his mother and then reneged on the naming.  Garth sued the stupid hospital and he won not only his money back but also an additional $500,000 in punitive damages.  This hospital need new administration and a new attorney.  The jury found malice after the hospital in a memo stated that they would make Brooks work like hell to get the money back.  Now the idiots are considering appealing the decision and generating even more bad publicity for the hospital and Integris.  Brooks stated that one day his mother's name will be on a women's center at the same hospital but that Integris will no longer be the owner.

US v Henry Ford Health Systems

Ford has settled with the government after a deaf patient and his deaf relatives were denied interpreters while the patient was at the hospital.  The patient is now deceased but the relatives will get between $35,000 and $75,000 each due to the hospital's negligence.  The total fine was not published in the article in the Daily Tribune.  The agreement also requires Ford give training to it's employees on ADA and have policies in place to assure ADA rules are followed.  They also are required to have a corporate ADA administrator and ADA facilitators in all facilities including all outpatient areas.

Massachusetts v UMass Hospitals

UMass Hospitals have agreed to pay $520,000 to the Republic for their unseemingly use of models in miniskirts to lure potential bone marrow donors and then chare high prices for the testing required.

Aetna v BASM

Aetna has filed suit against 11 surgical clinics in California who bill them huge amounts of money for surgery on patients when the clinic has no contract with Aetna. It may be that Aetna is using the law suits as a lever to make the outpatient clinics sign the usual terrible rates it wants to pay.  The problem are facility fees.  Aetna may have a point as some of these clinics charge ridiculous gouging fees.   

Public counsel v White Memorial Hospital

White Hospital has been charged with patient dumping and sued by Public Counsel.  The information has also been turned over to the Los Angeles City Counsel.  The hospital apparently dumped a psychiatric patient on skid row when they should have known about the patient's wife who visited him daily.          Top

Peer Review and Employment

Meyer v Health Management Assoc.
SD Fla

Meyer, the compliance officer for the organization, internally reported his findings that the organization was cheating Medicare.  They fired him and he sued in state court for state remedies.  The organization attempted to remove the case to Federal Court but the Court refused it and also refused the award of attorney fees to Meyer.  The case is now back in state court awaiting trial.

Atta v Nelson

Atta was terminated from the hospital after an incident in the OR causing the physician and the physician he was supervising to be suspended.  He requested and was denied a separate hearing from the supervisee.  The medical staff chairman, Nelson, recommended to the Board that Atta be terminated.  Atta sued but lost at summary judgment due to not stating any facts to support his allegations.

Eisenberg v Permanente Medical Group

Eisenberg, a Orthodox Jew and an Ophthalmologist, was a partner in the Permanente system of Kaiser.  He was branded a disruptive physician and also not taking difficult cases.  He went through peer review and lost.  He then sued Kaiser Health Plan, Kaiser Hospitals and The Permanente Group.  The first two were removed quickly since he had only a tangential relationship with them.  He was an employee of Permanente.  The action was for ADA and religious discrimination.  The latter was removed quickly as there are many Jews working at Kaiser and there were times the peer review committee had to change dates to meet since it fell on a Saturday.  One time it fell on a Friday and Eisenberg claimed he could not be at the meeting and get to his parent's house before sundown, the start of the Sabbath.  This request was denied since it came late and would inconvenience the witnesses and the panel who had already made plans to attend.  He was also found not to be an employee of Permanente since he was a shareholder and partner.  That left him with no viable claims.

Avera St. Luke's Hospital v Karamail
ND S Dak

Avera Hospital, who has a long standing history of animus against their physicians, has struck again.  This time they were sued for medical malpractice and settled.  They then sued the physician who was not named in the original suit for contribution.  This came after the statute of limitation had run for the plaintiff to sue the physician.  The court ruled for the hospital on all counts.  He stated he was an independent contractor and not an employee of the hospital.  The court said that was in dispute. The court went on to state that they were not sure if that distinction could ever be made clear to a patient. This is a hospital and state that all physicians should be leery of working at (see below).

Ormand v Sanford Clinic
2nd Circ. S Dak

In a fascinating re-boot of a prior decision the court reversed itself and ruled that Dr. Ormand, a physician employee of the clinic, had triable issues of fact and prior summary judgments for the clinic should be overturned.  South Dakota is a right to work state and the clinic had a non-compete clause in their employment agreement.  The court now ruled that a non-compete clause means that the person may not practice the same type of business as the employer.  Here, the physician was practicing medicine and the clinic is precluded by state law from practicing medicine.  Therefore, the  non-compete clause is void. It is important to note that the court ruled that the non-compete clause also may have impaired the physician patient relationships in violation of the corporate practice of medicine.   There were other issues inherent to the contract per se which are not important for others that the physician won which included that the clinic put more overhead on her than on others.  I don't know what is in the water in South Dakota but the hospitals there are certainly anti-physician.  It is a beautiful area but is one's livelihood and sanity more important than the beauty.  It seems like the surrounding states may be better to practice medicine.  These cases also show the major importance of an attorney reviewing a contract with any hospital prior to a physician signing.

Edwards v Geisinger Clinic
3rd Circuit

A radiologist from England was hired by the Clinic.  In his initial letter to the clinic he stated he wanted to become Board Certified which required four years of training.  The Clinic incorporated this letter into the contract along with a statement that Edwards was an at will employee.  After one year the contract was not renewed and Edwards sued for breach.  The courts ruled that he was by contract an at will employee and could be let go at any time for no reason. I wonder if an attorney reviewed his final contract.    

Munoz v Puerto Rico Hospital
1st Circuit

Some hospital attorneys are dumber than others.  This one must take the cake.  Munoz was terminated from his position as director of invasive cardiology.  He sued for age discrimination.  While that suit was pending he purchased his own EKG machine and the hospital's volume dropped precipitously.  The Board just happen to drop his employment altogether as being disruptive the day after he testified in the original suit.  He then sued for retaliation.  The jury award was $1 million and the court of appeals affirmed.  I hope the hospital is not paying much for legal advice because they got very little.    

Mass. Medical Board v Sturdy Hospital
Mass. Superior Ct.

The Board sued the hospital for the handwritten notes of the CMO on his investigation of a physician for disruptive conduct.  The hospital claimed the notes were part of the peer review process and refused to hand them over.  Since they were done prior to any peer review process they were fair game and needed to be turned over to the board.  If the notes were part of a peer review committee they would not have been turned over until the Board filed formal charges and not just investigative against the physician. No peer review committee ever asked the CMO to do the investigation.  The Sturdy Hospital went down like a stack of cards and had to turn over the 17 pages of notes.    

Fox v Good Samaritan Hospital
9th Circuit

 In another case that will not die, many years ago Dr. Fox was a pediatric pulmonologist at the hospital and did not abide by the hospital rules of naming another pulmonologist with the same skills as a back-up when he was not available. As such, he was suspended from the pediatric ICU.  He appealed internally and lost.  He then sued and now after six years of depo and other costly motions the hospital finally woke up and invoked HCQIA saying it can not be sued for damages.  The Court chastised the hospital for their negligence but agreed with their premise.  The Court also stated that even though the hospital never reported Fox to the NPDB, they still were covered under the statute.  The Court took a final swipe at the hospital by denying them attorney fees for not asserting HCQIA at the start.          Top



US v Hospitals

Fourteen hospitals have agreed to pay the feds $12 million for the cost of performing kyphoplasty.  Four of the hospitals were from the Adventist System and they will pay the largest amount of $3.9 million.  This is continuation of a whistleblower case by two people who worked at the manufacturer.  He will receive $2.1 million.    

US v Kahn

 Mohammand Kahn, an administrator at Riverside Hospital in Houston, Texas, was arrested by the feds for participating in a kickback scheme.  He allegedly gave patients money and gifts to come to the hospital for care.  The hospital billed $119 million in false claims due to Kahn.  The hospital was not named in the suit.  He wanted a court appointed attorney but since he had assets the request was denied and he remains in custody.       Top


Armey v US

In a split decision the appellate court ruled that people who paid into social security may not opt out of Medicare Part A.  The plaintiffs want to keep their Social Security payments but not the Medicare insurance.  The Court stated they are intertwined.   

New York v UnitedHealth

 A Federal judge has cleared the payments of about $200 million to physicians for out of network payments.  This is from the class action suit for using the flawed Ingenix system which was weighted against the physician.  Now the insurers are using a percentage of Medicare for out of network payments and not usual and customary.  Again the physician will get screwed.      Top


Toney v Goyal
Penn. Supreme Court

The patient went to the physician for a pre-natal ultrasound.  She was told all was normal with the fetus.  The baby was born with multiple deformities.  She sued for emotional distress and not medical negligence for not preparing her for the shock of seeing the newborn.  The trial court dismissed the suit for not having a valid claim.  The Court of appeal reversed stating it was foreseeable that the patient would have a traumatic shock upon seeing her newborn.  The Supreme Court concurred on a 6-6 vote.  One judge recused herself.  The physician and the hospital is asking for a reconsideration by the court.  This may lead to other states also allowing emotional damages without physical harm.        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.