February 1, 2002 Legal


Lemon Law

Fraud & Abuse

Criminal Charges

Malpractice and Consent





Peer Review





Prison Healthcare

Lemon Law

Johnson v Ford Motor Co
Fresno, CA, Superior Ct

I know this has nothing to do with healthcare, but it is a fascinating case.  In a jury trial Johnson purchased a used Ford from Decker Ford in Fresno, California.  Johnson requested a mechanical history of the car and were told that Decker had no repair history.  This was a lie.  The original owner had multiple problems with the car transmission and asked Decker buy back the car at 10,000 miles as a "lemon."  Ford said it wasn't a lemon but offered the original owner a $1,500 certificate against a new car on trade.  The Johnsons had multiple transmission problems with the car including two complete replacements.  Ford refused to repurchase the car so the Johnsons sued.  The said Ford committed fraud on the public by assisting dealers on repurchase by the use of the $1,500 certificates which was intended to prevent lemon law claims, then selling the cars again without repair or repair history.  The trial against Ford was three weeks and was a 12-0 decision for lemon law violation and 9-3 for fraud.  The dealer, Decker Ford, settled prior to trial for $100,000.  The jury awarded $17,811 for compensatory damages and an additional $10 MILLION in punitive damages.  This will be appealed but the dealer and Ford may think twice before ever doing this fraud again.  All this over a Ford Taurus.          Top

Fraud & Abuse

Allina Health of Minnesota was accused of inflating claims and double billing to the tune of $19 million.  Allina has settled with the government for $16 million.  The case came about from two whistle blowers from the company.  The first one was on the oversight committee and the other was a CPA for Allina.  He still works at the company.  Both got $1.12 million for their actions.       

In an interesting turn of events, a New Jersey urologist has been indicted for receiving illegal kickbacks.  This is another case of a physician receiving free drug samples and selling them to patients.  The difference is this is not Lupron and Tap Pharmaceuticals, this is Zoladex and AstraZeneca.  He has been accused of threatening to switch to Lupron unless he received two free Zoladex for each patient he started on the drug.  The urologist, Dr. Antoun, faces a fine of $250,000 and 5 years behind bars. The question is whether or not Zeneca has the same problems as Tap.  An investigation is now in progress.

Eli Lilly has settled with the FTC on their violation of privacy when they released the names of about 600 Prozac users by sending reminder notices to take their medicine.  Lilly was not fined since the release was unintentional but they are now required to put in better safeguards to prevent a reoccurrence. They also have to have a yearly review of their policies. 

Watch your back.  The Minnesota Association of Nurse Anesthetists filed a whistle blower suit against hospitals and anesthesiologists.  The 8th US Court just allowed the suit to continue after it was overturned by a lower court.   

Commonwealth v Mimless
Mass. App. Ct.

The appeals court affirmed a jury verdict against a psychiatrist that billed for visits while on vacation and for time of greater than 24 hours a day.  The trial judge had given a "willful blindness" instruction to the jury.  This means the physician had deliberately closed his eyes to the fact of his overcharging.       

US v Huda
SD Ill.

In a qui tam action under the False Claim Act, two doctors wanted their action severed from others.  This was denied.  The facts are the physicians paid the referring physicians $200 for each cataract surgery done on one of their patients.  The paying physician could not perform the procedure but stated on the claim for he had done the surgery.   Top 

Criminal Charges

Dr. McCann, a LA physician, has been indicted on two felony charges for problems with liposuction.  Two women almost died when they developed kidney and GI failure along with Strept infections post liposuction.  He did the surgery in his office which is not licensed by the state as is required by law and he does not have malpractice insurance.  He has also been sued by both patients for malpractice.        

There are currently three physicians under indictment for murder or manslaughter related to prescribing OxyContin.  A Florida physician is now on trial for manslaughter and another Florida has been indicted for first-degree murder.  A California physician is also going to trial next month on involuntary manslaughter charges.  The question to be decided is whether the physicians prescribed the excellent pain killer for pain relief or money. One of the physician arguments is that the state is coming down hard on them since the medication is costing the state a significant amount of money, not that the doctors are over prescribing.    Top


Juliana v Shands (U. of Fla.)
Fla. Superior Ct.

The two month old boy was thought to have a heart murmur and referred to Shands. The boy underwent a cardiac procedure during which time the  perfusionist is alleged to made an error that led to an oxygen depravation and brain damage.  The family had reached a prior $2 million settlement with the perfusionist.  Shands was sued as the employer of the perfusionist but states there was no employer-employee relationship.  The plaintiff saw through the apparent sham independent contract and won a judgment of $10.83 million.    

Armstrong v Brookdale Hosp

A mother sued in federal court alleging violations of civil rights and medical malpractice by the institution against her eleven year old daughter.  The daughter found an abandoned baby and called the police.  The police suspected the child was the mother and took the child to the hospital for a determination of whether or not the child had recently delivered a baby.  The child and her mother refused to consent to the examination.  The hospital did the exam anyway which proved the child had not recently delivered a baby.  The mother sued the hospital.  The Court stated that the case should proceed to trial even though there was not a case of racial prejudice.  There was enough evidence or allow a jury to decide whether informed consent  had been obtained and whether the hospital had performed the examination under state law by direction of the police.

Fortier v Dehne
La. Ct. App  

The parents of a child with spina bifida sued after a surgeon they did not want and were told would not participate in the child's surgery did the surgery.  They originally sued under a medical battery claim but this was removed as a legitimate state cause of action.  The court stated the parents did all they could and allowed the case to go forward.  In many other states this would be allowed as battery which allows punitive damages, and may not be covered by insurance since it is an intentional unconsented to touching of another.   

Rogers v R.J. Samson Hosp.
6th Circ.

In what I consider a terrible decision the sixth circuit overturned a verdict in favor of the hospital for lack of informed consent.  The patient had "flesh eating Strept" requiring debridemont and eventually removal of his genitalia.  He states he never gave consent to the removal of his penis due to the overwhelming infection and his lack of ability to comprehend.  The jury was instructed about informed consent on the part of the physicians but not of the hospital.  The jury found against the physicians and in favor of the hospital.  The 6th circuit overturned the verdict for the hospital stating that the Kentucky requires "health care provider" to give informed consent.  The court stated that the hospital is a provider and consent should have been performed by its personnel and nurses.  Hopefully, this opinion is an island.  The nurses do not have the medical expertise to obtain informed consent which includes the pros, cons, alternatives and usual complications of a procedure.  This is a job for the physician and the physician only to do.  The hospital consent should only state that the physician has given the patient informed consent.  

Southard v Temple Univ. Hosp
PA. Supreme Ct.

The plaintiff had a spinal fusion in 1992 and a removal of screws in 1994.  The patient sued his physician for lack of informed consent since he was not told that the FDA would have labeled the screws as "off label." In 1996 this case was part of a large consolidation of cases that stated there was no legal obligation to inform patients of the FDA regulatory status.  The trial jury ruled in favor of the physicians.  The appeals court disagreed and remanded the case for a new trial.  The Supreme Court backed the trial court decision.

Schiff v Prados
CA Ct App

In this convoluted a sad case a six year old child died after treatment for a brain tumor.  The patient was not informed of the possibility of the non-FDA approved antineoplaston treatment.  This treatment was illegal in California at that time.  The patient did go to Texas and received the treatment which worked for a period of time.  They sued the physician after the death for lack of informed consent.  The Court of Appeal ruled that one does not have to inform a patient of a treatment that cannot be given in the forum state.  The physician must only disclose alternative treatments if they are available within the medical community. 

Bessinger v St. Mary's Hospital
Co. Superior Ct

St. Mary's Hospital in Grand Junction Colorado has admitted fault and apologized to the family of Bessinger for the error resulting in his death.  The patient was undergoing a myelogram when a technician inadvertently grabbed a bottle of ionic contrast (not to be used for spinal injection) instead of the proper non-ionic dye. The radiologist also did not follow procedure by not watching the drawing up of the medication into the syringe and not checking the bottle.  The hospital probably should not have had the ionic dye at all, but is is cheaper, but with greater side effects than the non-ionic dye for IVPs.  The patient went into severe seizures, strong enough to tear his muscles.  To date no action has been filed.  

Iraheta v Donaldson
Conn. Superior Court

In the course of a worker's compensation examination the physician pricked the patients abdomen with a sharp object and the patient claimed battery for no consent to the abdominal prick.  The court ruled that no consent is essential for battery and that a consent to an exam did not mean consent to all in the exam.  It would not mean that there would be any consent to an injurious action.  Here, the action did not rise to an injury and was dismissed.   I do not understand the logic of the attorney to take the case knowing or should have known it was a loser.  

Shaw v Children's Med Ctr of Dallas
Texas App. Ct.

The parents sued the hospital for the malpractice of an ED physician.  The physician was an independent contractor and the parents could not offer any proof of anything done to make them believe the physician was in the hospital's employee.  The admission agreement stated that physicians were not agents of the hospital. 

Carter v Oak Hill Med Ctr.
Ohio App. Ct.

In a case with some different facts the opposite conclusion to the above case was reached.  Four years after an appendectomy in which the appendix was found to be normal by a pathologist, the patient died of cancer.  The estate sued the hospital for the actions of the pathologist.  The hospital stated the pathologist was an independent contractor who did not work on the hospital premises.  The estate claimed they looked to the hospital to provide the competent care.  The court stated the hospital could be liable if they held themselves out as a provider of medical services and with no knowledge to the contrary the patient looked to the hospital for their care.  The court looked at the hospital's advertising  to determine that they did hold themselves out as a provider of medical services.  The patient had no knowledge that a non-hospital based pathologist conducted the examinations.  The Appeals Court reversed the summary judgment for the hospital.       

Chipps v Humana

Chipps was awarded $80 million by a Florida trial court for Humana's  treatment of their daughter who has cerebral palsy.  The Court of appeals overturned the trial court because of judicial errors.  The family has now settled the case for $2.2 million.  Humana states that the daughter did not meet the criteria for special benefits.  The trial court jury obviously did not agree. Humana points out the sum settled on is less than 4% of the original sum.  This spin ignores the fact that they lost.  They lost the money, the money for their attorneys and the public relations.  Top


The Michigan Court of Appeal has allowed the February 1, 2002 implementation of a strict pharmacy restriction for Medicaid patients.  If the pharmacy companies want to be on the list devised by political appointees they will have to give discounts.  This shows the list is based on cost and not quality.  If a physician wants to prescribe a medication not on the list they will need permission from a technician trained in asking questions.  Another article states that the Medicaid patient are not happy with the rationing of care. The state is attempting to copy the HMO rationing principle.   What if no drug company gave the discount?  What if physicians refused to be comply with the state and dropped out of the program? However, their pocketbooks won't let them drop out.       

In Texas, the jury in the Rezulin law suit has returned a punitive damage award of $1.5 million.  This is on top of the prior compensatory damage award of $23.46 million for not warning consumers about the potential liver damage from the drug. 

Hansen v Baxter International
Supreme Court Ill.

The Illinois Supreme Court has upheld a $18 million award against Baxter International for a defective IV design.  The IV tubing came apart and allowed an air embolus to go to the brain causing severe brain damage and eventually death.  There were no warnings about the possibility of the tubing connectors coming apart. The family also received $2.9 million in settlements including from Mt. Sinai Hospital in Chicago  Top


Toyota v Williams
US Supreme Ct.

There has been a clarification as to the meaning of disability under the ADA.  The Supreme Court in a 8-0 vote stated that disability is the inability to do or restricts a person from performing activities that are of central import to their lives.  This removes the loss of ability to do job skills as a ADA disability.  In this case Williams had carpal tunnel syndrome and could not do her job completely.  She requested and was denied accommodation for her alleged disability.  The Supreme Court has listed four requirements for ADA disability.  These are (1) long lasting or permanence (2) physical or mental impairment (3) that substantially limits (4) a major life activity, one that is of central importance to daily life.        Top


Silverman v Summers
6th Circ.

In a case where the attorney for the Board of Chiropractors should have known better, the 6th Circuit struck down a state statute prohibiting the telephonic solicitation of patients as too broad.  This has been argued and lost many times in the past in advertising for attorney, dental or medical services. The law must be more narrowly tailored to be legal.        Top


Med. Bd. of CA. v Superior Ct.
CA Ct. App.

An OB was accused and found guilty by the Medical Board of California of 175 findings of inappropriate sexual comments and touching of patients and hospital nursing staff.  The Board revoked his license and stayed the revocation with terms and conditions (probation).  The physician appealed the revocation to the Superior Court which agreed with the Board in its findings but found the punishment too severe.  The Board appealed the Superior Court order for a new less severe sentence.  The Ct. of Appeal agreed with the Board stating it was in the bailiwick of the Board to set the punishment for unprofessional conduct.  The Board's decision should not be disturbed unless it is arbitrary, capricious or an abuse of discretion.          Top

Peer Review

Bressman v Pomona Valley Hosp.
CA Ct App

The physician, a vascular surgeon, was peer reviewed by two separate ad hoc committees that found him lacking.  The MEC summarily suspended him after a surgical mishap.  He went thru a Judicial Review and then a Board review, both of which sustained the action of the MEC.  He then filed a mandamus hearing in Superior Court asserting he was not allowed a fair hearing since he did not get to voir dire the JRC and was denied an attorney to assist with the voir dire. The Superior Court went with the hospital.  The physician then appealed and lost again.  The court stated that while peer reviews need to be fair they do not need to have the same level of due process as a civil or criminal trial.  With regard to the lack of an attorney, the court quoted B&P Code 809.3(c) which states the peer review body decides whether the physician is allowed an attorney.  In this case the hospital bylaws stated that neither the medical staff nor the physician were allowed help by those with legal training unless both were allowed to have attorneys.            Top


West Virginia v Sanders
WV Supreme Ct.

The patient sued a physician for malpractice and the hospital for faulty appointment and reappointment of the physician.  The patient subpoenaed the forms filled out by the physicians when he was credentialed.  The high courts overturned the lower court since, although it is true the documents did not originate with the credentials committee, the forms would never have been filled out if it wasn't for the credentialing.  Also the committee used the forms as a starting point for its decision to credential or not credential an individual.         Top


St. Luke's v NLRB
8th Circ

A L&D nurse did not like the hospital's changes in L&D staffing and scheduling of nurses.  She appeared on TV and accused the hospital of jeopardizing the health of mothers and babies.  Many staff physicians and nurses thereafter refused to work with her.  He was fired four days later for creating an atmosphere of distrust and physicians and nurses refused to work with her due to the wrongful disparagement of their professionalism and performance.  The nurse's union appealed to the NLRB who backed the nurse since the action was a protected First Amendment issue.  The 8th Circuit overruled the Board by stating the First amendment protection does not apply to one who falsely and publicly disparages an employer. The Court also stated that it was incumbent on the hospital to prove the reason for the dismissal was the unprotected action.        

Brandon v Anesthesia & Pain Assoc., LTD
7th Circ.

Brandon did a whistleblower number on his employer.  After bringing the matter to the attention of the shareholders, they did not like that he had notified the feddies.  Several weeks later, Brandon was fired.  Ten months later, he reported the group to the US Attorney and sued for retaliatory termination.  The jury awarded him $2 million.  The district court reversed the state trial court stating that reporting a federal law violation could not violate Illinois law and public policy.  The appeals court reversed the district court.  They stated federal and state law are to be given the same deferential treatment.  So preventing a federal law violation is the same as preventing a state law violation. They also stated that the existence of a remedy under the federal False Claims Act does not preclude a retaliatory discharge claim under state law.  The doctor got the money. The Group should get a different attorney as the physician should not have been terminated.  This was just stupid.        Top


Bauman v Tenet 

In yet another strange case to be taken by an attorney, the patient sued the hospital for an EMTALA violation due to lack of proof of insurance and deterioration of the medical condition.  The patient presented to the ED, had a screening exam, told nothing serious was wrong and later told he had a broken jaw.  The patient refused any other treatment and requested a transfer.  An ambulance transfer was arranged but the patient refused and later went to another hospital for treatment. The hospital obviously won summary judgment since it did all the steps correctly.    

Hickline v WBH Evansvill, Inc.
SD Ind.

An estate sued the hospital and physician for EMTALA violations causing the patient's death.  The physician moved for dismissal and was granted it since there is no private right to sue a physician under EMTALA, only the hospital.    Top


Vencor v Aetna
SD Ind.

Aetna got what it deserved.  Vencor called Aetna several times both before and after the patient was hospitalized and was told that the patient was covered for a lifetime limit of $500,000.  In fact, under Medicare, the patient was only insured for $50,000. Aetna admitted they had misquoted on several occasions the correct amount.  Since the hospital relied on the assertions of Aetna they were allowed to collect from Aetna.  Aetna was not guilty of fraud since they did not intentionally misrepresent its statements.  They were just dumb.  Top

Prison Healthcare

In a class action case the nonprofit Prison Helath Office won a settlement from the California Department of Corrections for "cruel and inhuman punishment".  The Department is to make significant improvements in the inmates healthcare over the next few years.  This will include an RN on duty 24/7 in the ED beginning next January 1.  The prisoners will be assigned primary physicians and there will be standardized protocols developed.  I get about one letter per month from inmates wanting to sue over their inadequate care.  I believe them.    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.