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Bates v Metcalf
Tenn. Ct. App.
The Court ruled that even though specific consent was not obtained for a procedure, the patient had had the procedure in the past and knew the pros cons and alternatives, therefore giving implied consent. The patient had rectal bleeding secondary to a hemorrhoid and fissure. The second procedure led to an injury to the sphincter, a known complication.
Hall v Jackson
Pa. Superior Ct.
The patient fell and injured her chest. An x-ray was obtained which showed no broken bones. The records were sent to the on-call and not the patient's regular physician. The original x-ray showed a lesion in the lung and 3 years later she developed a lung cancer where the lesion was. The cancer was inoperable. The jury ruled for the family and the appeal also was for the family except that no punitive damages were allowed since there was no showing of malice. This is a good case to show why the report should always be sent to the patient's regular physician even if not on the staff of the hospital.
Benham v Norton Hospital
Ky. Superior Ct.
The jury awarded $3 million to a father and son for the son's damages during birth. The mother had died from an unrelated illness. The trial centered on the nurse's care after Pitocin was administered to the mother and there was bradycardia in the fetus. The hospital stated it would appeal the verdict but does not state on what legal grounds.
Woodrum v Johnson
W. Va. Supreme Ct.
In an interesting case, the West Virginia Court ruled that if a plaintiff settles with one defendant, the physician, he can still press the case against other defendants, the hospital, even if those other defendants derive their potential liability from the settled defendant. This is true even if the physician is a non-employee of the hospital and there is no allegation of negligence against the hospital. The rationale is that this encourages settlement over trial. Top
Pennsylvania Atrium I is being investigated for the death of an 88 year old woman who slipped thru an unlocked door and wandered in the cold until she died. The door was left open by employees and the alarm disabled so they could sneak out the back for a smoke. When the woman, who had Alzheimer's, was found in a courtyard the employees moved the body back inside without notifying anybody. The patient's clothes were also changed to make the family believe she died in bed. the heat was also turned on high to attempt to warm the body so no one would know she died in the cold.
A settlement was reached in Palm Beach, Florida between the family of a nursing home patient and the home and physician. The patient was denied food and water for three days since she was a DNR and had suffered a stroke. This left her in a PVS for two years. Top
Hospital v Schoos
Wash. Ct. App.
A physical therapist signed a covenant not to compete with the hospital and later left and practiced with a competitor within the mileage specified in the covenants. There was also a liquidated damage clause for $180,000. The hospital attempted to settle this out of court but could not. The lower court awarded the hospital the $180,000 plus the covenant. The appeal court agreed. In California in almost all employer employee relationships there can be no covenant not to compete as being against public policy. Even if one is an owner unless one sells good will, there can be no enforcement for a covenant not to compete.
Hansen v Permanente Medical Grp.
Ca Ct. Appeal
In an unpublished opinion ( which means it may not be used for precedent) the Court of Appeal ruled in a case of a physician who was let go because of budgetary constraints and longstanding interpersonal problems with co-workers and patients. The physician went to work for another organization and received an unfavorable recommendation from Permanente stating she had been disciplined. She was let go from her position at the other organization and sued for sex discrimination. The form from Permanente was found during this suit and was the first indication the physician had that she had been disciplined. She was a pool physician at Permanente which meant she was an hourly "at will" employee. She apparently had no peer review due process procedure while at Permanente, but was told on several occasions by her supervisor that her conduct was inappropriate. As an "at will" employee she was not due any peer review process. She lost on defamation since California law gives absolute immunity for credentials information, whether or not it is truthful or done with malice. Yes, you read this right! Top
Knight v State Conn.
2nd Circ
Can born again Christians health employees proselytize while working with clients. The Court said "no". This is against the Establishment Clause and the right of the individuals was less than the right of the State's interest in avoiding disruption on the job.
Lanxon v Crete Carrier Corp.
D. Neb
A woman sued under the ADA for employer intrusion into her medical history. The woman was treated for seizures and then the employer's medical review officer requested and received permission from the employee to interview her physicians regarding the seizures. The officer also discussed the medical condition with co-workers. The woman was then placed on medical leave pending her physician stating she could return to work following a new seizure. The Court found that there was an issue of fact as to whether involuntary medical leave was an adverse employee action and that the ADA prohibits employee inquiries regarding the illness unless certain exceptions are met. These were not present in this case. The woman could continue with her case and summary judgment for the employer was not allowed. Top
US v Regents of Univ. Calif.
ND CA
This case originated as a qui tam (whistle blower) case. The government intervened and won a $22 million settlement. The whistle blowers sought a 20% piece of the action. They lost since individuals in a qui tam proceeding are not allowed to sue a state actor such as the Univ. of California.
US v Lincare
Lincare, a large in-home oxygen company settled with the government. In order for oxygen to be paid by the Medicare program a test for oxygen saturation was required. The company did their own tests for no or a reduced charge and then supplied the oxygen. This cost over $3 million. Top
Hannis v Sacred Heart Hosp.
Pa. Ct.
The parents of minors sued their pediatrician and the doctor's hospital employer for negligence. The pediatrician had TB and the case was that he and the employer knew or should have known about the disease. The plaintiff asked the Bureau of Health for the names of all the children treated by the pediatrician. The Bureau refused and the court agreed. On appeal the court also agreed with the Bureau that all the names are protected just as the health records are protected. This is going to blow the potential of a class suit out of the water. It is surprising that Pennsylvania would ever agree to a limitation on anything a trial lawyer wanted.
Feathers v Bd. of Med.
W. Va. Supreme Ct.
The Board of Medicine was investigating a podiatrist for improper billing. The Board requested via subpoena 30 medical records. The podiatrist moved to quash due to privacy. The courts all went with the Board since no probable cause was needed. Top
Peer Review
Hughes v Pullman
Mont. Supreme Ct.
A radiation oncologist prior to doing radiation therapy on a woman with bad breast cancer painted a smiley face on her breast. The patient complained and the process began. An ad hoc committee investigated and reported to the MEC the recommendation that the doctor receive a letter of reprimand, probation, and be chaperoned. The MEC added an evaluation by the Montana Assistance Program. The physician signed the consent and was hospitalized for evaluation in Texas and then had treatment in Kansas. He then returned to Montana and signed an aftercare agreement. He then sued Pullman the COS for false imprisonment and some Federal concerns to get the case in Federal Court. He maintained he signed the agreements under duress of losing his license and staff privileges. The Federal Court would not let the discovery of peer review records come in and ruled in favor of Pullman. The State Court did likewise. The Montana Supreme Court ruled that Hughes acted voluntarily by signing the consent and then going to Texas to enter the facility. The ad hoc committee meetings and recommendation were not germane to the issue of voluntariness. I wonder if the physician had legal counsel prior to signing the consents since he wasted his money later. Top
EMTALA
Godwin v Memorial Med Ctr.
N. Mex. Ct. App.
New Mexico has a Tort Claims Act (TCA) that limits claim notices and capping damages from a public hospital. In this case the patient fell and injured his back. He went to a hospital and was examined but no x-rays were obtained. A week later he returned complaining of leg numbness. A CT scan was performed and was negative. He was discharged with ibuprofen and asked to make an appointment with a neurologist. He left in a wheel chair since he could not move his legs. Two days later he again returned and an MRI showed compression of the cord by a hematoma. He was now permanently paralyzed. The case was filed as an EMTALA violation for inappropriate medical screening. The district court agreed with the hospital that the TCA limited the damages. The disagreement was over the 90 day notice required by the TCA. The Court of Appeal ruled EMTALA overrode the TCA in this regard. Even if no 90 day notice was given the case could go forward. EMTALA has a two year statute of limitations which takes precedence. The Court also ruled for the hospital since they could not be liable for stabilization of an unknown specific emergency condition. Top
The first case by a patient against Warner Lambert (Pfizer) for Rezulin has been won by the drug company. The case took three weeks and the verdict came back in 8 hours. The jury believed the drug was good and helped a lot of patients. They did not buy the argument that the drug company kept it on the market just for profits. Most importantly they did not buy the argument of causation since she died of kidney failure but had liver failure as a secondary diagnosis.
In a second case with no kidney disease a jury in Corpus Christi, Texas awarded $43 million in compensatory damages to a woman who died from liver disease after taking the medication. The punitive damage phase was in progress when the parties settled for confidential amount that is significantly less than the compensatory damages.
Pfizer has fared better in Los Angeles, where a US judge has stated the company was not the cause of a man's suicide after taking Zoloft. The patient's physician stated he would not have acted any differently even if Pfizer had put on a warning label about the drug's potential to cause suicidal thoughts.
Pfizer has settled another suit regarding Rezulin. The confidential settlement happened in Liberty, Missouri. The plaintiff was seeking $1 million to cover a liver transplant. This means the settlement was probably significantly less. Top
The Department of Health in New York State has stepped over the line. They have the power to establish guidelines in hospitals but not in office based procedures. Only the legislature may set guidelines there. The DHS didn't care and promulgated guidelines for nurse anesthetists in office based procedures. They were sued and lost. Top
Minn. Senior v US
8th Circ
A Florida resident with Medicare + Choice wanted to live with her daughter in Minn. (She is already suspect.) There was a disparity between benefits between the Florida and Minnesota plans which left the person with less coverage than in Florida. She sued and wanted the right to travel to be used which is under the strict scrutiny standard, an impossible standard for the US to win. The Court said that the right to travel is not at stake and that the rational basis test should be used, an almost impossible standard for the plaintiff to win. Top
US v Lievertz
SD Indiana
Dr. Lievertz, a paid spokesperson for Purdue Pharma and their drug OxyContin, has been arrested and charged with Medicaid fraud. He was selling large amounts (over $1 million) to a person connected to a drug selling ring. The company stated that Dr. Lievertz was not on the books as a paid speaker for the company. This was refuted by the physician sharing office space with Dr. Lievertz. He faces 25 years in prison and a $250,000 fine. Top
Who's Defaming Who?
Russo v Nagel, et. al.
NJ Superior Ct.
A high profile eye surgeon who advertises prominently for patients is being sued by some patients for poor results in his radial keratotomy surgeries. The firm representing the patients is turning the tables and using high profile ads to look for other patients who have been injured by the physician so they can get a class action suit. The firm has received two dozen calls to date. This was enough to file the class action for fraud and battery. Dr. Russo is now suing the law firm for defamation. He states the firm is going after him because he refused to settle for $3 million in the original malpractice case. There is no direct case against Dr. Russo but the case stems from an unlicensed associate touching patients. Dr. Russo's attorney states that all were performed under the supervision of the state board. It would be interesting to see who had the larger ego, the attorneys or the physician. 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.