January 1, 2005 Recent Legal News
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US v Hurwitz, MD
USDC VA.
In an important case, Dr. Hurwitz was convicted of prescribing pain management opiates across the country. He was acquitted of some of the charges but found guilty on 50 charges to date. This case when it finishes was important because it led directly to the DEA pulling the pain relief guidelines that had been agreed to by the DEA and pain physicians throughout the country from the DEA website. The DEA was afraid that the guidelines would give Dr. Hurwitz a valid defense.
US v Stupak
Guilty Plea
Mr. Stupak, the regional manager of Serono Labs, pled guilty of offering kickbacks to physicians. He offered trips to conventions in Cannes, France, if they would use his product. The problem was the problem was for AIDS wasting and with the new HIV therapy the wasting had diminished. His job was threatened by the company if he didn't get more business. He is scheduled for sentencing later.
US v Rubin, et al
Filed
The Government has filed charges against three pharmacists and two physicians for a scheme that they sold prescription samples to the public. The people got the free samples from the drug companies and then sold them after mixing them with the regular prescriptions. The pharmacists bought the drugs at rock bottom prices from physicians and drug companies and then sold them at retail. The pharmacies are in the Philadelphia area. Top
Hafford v NIH & Nat'l Reg.
Memphis
Filed
Hafford died from apparent complications of an anti-AIDS drug regimen. She was part of an experimental program. One of the drugs may cause liver disease in pregnant women. Hafford was pregnant and got liver disease. She died two days after delivery. The medication was supposed to be stopped if liver disease developed. An internal memo in the NIH stated when the case came to their attention, "Ouch! Not much we can do about dumb docs."
Manifold v Creutz
Conn. Supreme Ct.
Manifold sued Dr. Creutz, the Dept. of Children and Families and a hospital for negligent infliction of emotional distress and malpractice. Creutz is an ED physicians who examined the children of Manifold and suspected child abuse due to excessive bruising. The physician reported the incident to the Dept. Several days later the child was found to have idiopathic thrombocytopenia. The parents sued and lost in the lower court since there is protection for reporting suspected child abuse. The Supreme court differentiated between treatment and abuse assessment. The family can continue the emotional distress issue against the Dept.
Patients v Tenet
Settlement
Tenet has put into a fund $385 million to compensate patients for any harm done by having unnecessary cardiac procedures or surgery at the Redding, California, hospital. Tenet is still currently in trial with the Government over illegal recruiting of physicians in Alvarado Hospital in San Diego.
In a second settlement, this one in Florida, Tenet has agreed to pay $31 million to take care of 105 lawsuits filed against Palm Beach Gardens for negligence leading to post surgical infections.
Hafford v Regional Hosp
Tenn. Superior Ct.
The promised law suit by the family of
the woman who died after taking the wrong dosage of an AIDS medicine while
pregnant has filed suit against the hospital and physicians. This is the
case where the feds knew about the wrong dose and did
nothing. Top
Catipay v Trumbull Hosp.
Ohio Ct. App.
This case shows the poorly written and decided cases on this law. The physician was an argumentative sort who had no problem with quality of care presented. He made enemies of the Chief of his Department (Peds) and the Chief of Staff, also a pediatrician. The problem was the physician's belief that the chief of Pediatrics was not doing her job and was not taking call, both of which may or may not be true. The Chief mandated a physical and mental exam prior to recommendation for another term. The Credentials Committee recommended a one year probation and the Executive Committee agreed. The Board agreed as well but also formed an ad hoc committee who after meeting for two hours recommended the summary suspension of the physician. The Board did the suspension. Eight months later a hearing was held and the suspension upheld. The physician then lost his privileges and sued. He lost under HCQIA since the two hour secret meeting was not a real hearing just an ad hoc committee and there is nothing to prevent the Board from creating an ad hoc committee. Of course, nothing in the original complaint by Dr. Catipay was addressed or corrected.
Moore v Rubin
Ohio Ct. App.
Moore sued Rubin, the department chair, after a peer review hearing. Moore contended that the hearing was in retaliation for the denial of the Chair into the physician's surgical group. The Court found that the hospital and the Chair protected under HCQIA and dismissed the suit. An interesting side note in this case was a provision in the bylaws stating "that they were in no way intended to create any contractual relationship." A perfect reason for the medical staff to have its own attorney.
Dunning v Boulder Hosp.
Colo. App. Ct.
The Court of Appeal found immunity for the hospital and it's physicians under HCQIA since the hearing was reasonable even though the hospital decision was based on items that were subject to more than one opinion and there was no physician of the same specialty on the panel.
Wahi v
Charleston Med Ctr.
SD W VA
The federal court in West Virginia stated that the physician does not have to go through all the hospital administrative procedures prior to suing. However, the hospital is still entitled to HCQIA immunity after discovery and the hospital did not breach privacy when it told a reporter that the physician had been reported to the national Practitioners Data Bank. The physician did have a case against the hospital for conspiracy between the hospital employees and the Medical Board. Top
Zisman v Albany Med Center
Settlement
Zisman was suspended by Albany Hospital and shut down the heart transplant program in October 2003. He and another heart surgeon were accused of upgrading the need for transplants. Zisman sued for $5 million. A peer review committee apparently cleared Zisman of al charges and he was reinstated. He had already taken another position at a different hospital. In November 2004 a transplant service was reopened with two new surgeons hired by the hospital and a new system of classifying patients. The terms of the settlement were not released.
California Nurses v Schwarzenegger
Filed
The California Nurses Union thinks they are stronger than the Terminator. The Guv refused to allow the second part of the nurses right to work rules passed by Gov Davis to go into place. The rule would have mandated one nurse for every five patients, a laudable goal, but stupid. As all know there are not enough nurses as it is and some hospitals in southern California have closed partially due to the ratios. The Terminator only wants to postpone the ratio. If the case winds through the courts at its usual slow pace it could be years before it is resolved and then there may be enough nurses. Top
Rome Ambulatory Surg. v Rome Hosp.
To Trial
After four years the courts have finally decided that the case by the ambulatory surgical center and its physicians can proceed against the hospital. The court did toss nine of twelve counts against the hospital but allowed three to stay. The judge wrote the hospital may have been a substantial factor in the closing of the Center and the antitrust venue is proper. Top
Mileikowsky v Med Board Calif.
Trial Ct.
In a writ of Mandamus action the physician prevailed over the Medical Board. The physician was disciplined by the hospital and then that action was reported to the Board. The Board recommended a psychiatric exam of the physicians and the physician went to court. The Court stated that there was a conflict of interest between the state's reviewer and the physician as both were from the same hospital. Also there was nothing except hearsay and the potential of a problem between the physician and the hospital management as the basis for the misconduct. The information given to the Board by the physician were not considered. This is becoming more prevalent in California where the Board believes they are always right and nothing anyone states will make any difference. There will be and should be more cases against this Board.
Indiana v Mason
Referral
Mason had previously been accused of and the Board had rejected in a 4-3 vote allegations that Mason drank prior to seeing patients. This time the Attorney General has asked the Board to look into Dr. Mason fondling employees and lying on his medical application. This comes from lawsuit filed by a former employee, so one must take it with a grain of salt. Top
Fischer v Neighborhood Health
Fla. Superior Ct.
This case has just been given class action for 4500 Miami physicians against the Miami based HMO. The suit is for the intentional reduction of and delayed claims. This was the automatic downgrading of claims as is practiced by many insurers. The attorney for the physician told the Court that the person downgrading the claim had no medical training and was sent to a one hour class. The person had to do 40 claims an hour to earn a bonus. Top
US v HealthSouth
Settlement
HealthSouth has settled the numerous allegations of Medicare fraud and paid the feds $325 million. The problems were the outpatient physical therapy and inpatient rehab businesses. This case comes from a whistleblower case in Texas. The main tattler will get $8.1 million with others receiving less. Top
Kaforey v Stein
Ohio Supreme Ct.
Stein is a baby whose father is accused of shaking and is now in a coma. He refuses to allow the state appointed guardian Kaforey to pull the plug on the child. The Supreme Court stated that as long as his parental rights have not been terminated he has the power to say whether or not to pull the plug, no matter the conflict of interest. The father is not in jail but will be accused of murder if the child dies. 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.