January 1, 2006 Recent Legal News
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Hartwig v Yale
FOIC
Professor Hartwig wanted to know the rates HMOs pay cardiologists and GI physicians. He asked the state Department of social services. They declined to respond since the HMOs were private and not governmental agencies. The hearing officer and the Freedom of Information Commission both ruled that the HMOs perform a governmental function and information is subject to the state's Freedom of Information Act. This will probably be appealed. Top
Hospitals v Worker Comp.
Ohio
The lower court in Ohio stated that the proposed $50 million cut to hospitals by the state Worker Compensation was illegal since it did not follow state administrative rules and arbitrarily changed the way it reimburses hospitals. The Board stated the changes were reasonable but the court stated hearing must be held. The bureau stated the lower rates will continue until the appeal is completed.
Palm Medical v State Comp. Fund
Trial Ct. San Francisco
This is an important first step in opening up managed care in California. Palm sued State Comp when it was refused admission to do Worker Comp and was not given a hearing as to the reasons. The rationale was from the Potvin v Metropolitan Life case where the California Supreme Court ruled that physicians have a protected interest and if removed from a managed care panel they must be given due process of a hearing. The insurance company must have substantial impact in the arena complained about. That was true in Potvin and is also true here since State is the largest network in the state of physicians doing Worker Comp cases. This means that now applicants that are turned down by networks are due a fair hearing and this may be so onerous as to make California an "any willing provider" state. The losing party may appeal and if they do and lose there this would be a published ruling and must be followed. Top
Northwestern v US
Filed
Northwestern University has filed an appeal to the ruling that forces it to divest Highland Park Hospital from its merger with Evanston Hospital. The AHA has sided with the hospitals and filed a friend of the court brief. I hope the hospital remembers how they treated their physicians when the merger took place and why they are now going through this costly mess.
Charleston Med. Ctr. v Physicians
Filed W. VA
The West Virginia hospital has filed antitrust charges against their own seven heart surgeons that they are conspiring to fix prices. The surgeons have complained that the hospital's trauma unit is understaffed and they will not participate in the trauma team. They also want to be paid for their being on call. That is the true rub. The surgeons in the other specialties are being paid. The physicians would be well served to look for another hospital that wants cardiac surgical services. They will never be happy at this hospital again. Top
Georgia v Bagnato
Filed Criminal
The state of Georgia has filed an indictment against Dr. Bagnato and is administrator Mr. Rehberg for sending harassing faxes to Phoebe Putney Hospital in Albany, Georgia. In fact the two did a whistle blowing on the charges of the hospital that began the nationwide not for profit law suits. The two were also charged with assault for threatening a physician and burglary for entering the physician's home uninvited. It sounds like the political arm of the hospital is putting pressure on the DA. The hospital was stung when they were exposed for spending significant unjustified money by the administration and board.
Cedar Valley v Covenant Med. Ctr.
Filed
The 53 person medical group filed a law suit against its hospital for trademark infringement and business infringement by withholding privileges from its group including canceling the group's call coverage. If true, they may own the hospital. Top
Sanghi v Principi
DDC
A physician who was terminated from the VA system for continually not doing his medical records to the point of potentially harming of patients sued to get his position back. He lost since he had full hearings and the court refused to substitute its judgment for that of the Secretary.
Mileikowsky v Tenet
Filed US Supreme Ct.
Dr. Mileikowsky was fired from Tenet in Encino after a scandal regarding informed consent and the storage of fertilized eggs. After the physician testified for the plaintiff in this underlying case he was accused of misconduct. He was given a hearing but not allowed to have an attorney present. The hearing officer was an attorney who had previously worked for the hospital. The hearing officer decided that the physician was "disruptive" and agreed to cancel his privileges on summary suspension. The issue is that California law is different than federal law. Federal law states that the physician should be allowed to have an attorney to get due process. B&P 809 of California may not allow attorney to be present. California is the only state to opt out of HCQIA prior to the 1989 end of the option. The attorney for Mileikowsky is Alan Dershowitz. Top
Pieper v Biomedical Tissue
Filed
In what will soon be a potential class action suit, Mr. Pieper has filed suit against Biomedical plus other firms and a funeral home for harvesting tissue for transplant and doing no testing for disease on the cadaver. This put the fear of disease including HIV into Mr. Pieper and potentially others, if the attorney can find them. I have to agree it does not seem right to transplant cadaver tissue that has not been tested into human recipients.
In England a large verdict in an asbestos case was reduced by 20% by a judge who stated that the patient continued to smoke after learning of its dangers and therefore contributed to his own disease process.
Foster v Wilkes
Settlement
The case was settled for $1 million dollars after the physician agreed that she made an error at the error prone Jacksonville Naval Hospital. This physician admitted she never read the patient's chart and if she had she never would have operated on her. The patient had a hysterectomy but had a small bowel surgery years prior. The hysterectomy caused a hole in the small bowel and the patient after three operations died of sepsis. The physician was a gynecologist but stated a surgeon should have performed the procedure.
Bargar v Midei, Sell, Midatlantic
Baltimore County Jury
In one of the most unusual cases I have ever read, patient Barger sued the above not only for malpractice but for fraud and battery. The jury found that the two physicians of Midatlantic Cardiovascular Associates committed fraud on the patient by stating that his surgeon was not available to operate on him. The surgeon is in a competing group. The fraud negated the consent by Barger to allow Sell to operate and therefore he committed battery. The result was that all three defendants must pay $2.25 million and that Midatlantic must pay an additional $2.75 million. The testimony showed that Midatlantic instructed the patient be told his surgeon was not available for the surgery. However, after the surgery the patient's wife saw the physician in the hall and spoke to him.
Patients v UC Irvine
Filed
Nine families whose relatives died while awaiting transplants that were available but turned down by the hospital have sued for damages. Medicare stated that over 30 died due to the hospital continuing to take patients even though there were no ability to do transplants. This will be settled quickly as the publicity continues to get worse.
Dang v Jarris
9th CA
Ina an interesting case, Dang was a seaman on a vessel at began acting very psychotic. The purser called the physicians in Seattle who were on call for the ship emergencies. She explained to the physician the symptoms and the physician thought the man was psychotic. In reality he died the next day from diabetes. The physicians and the company that owned the boat were sued by the widow. She lost in District Court as the judge stated the Maritime Act trumped the state malpractice law. The 9th reversed the decision and awarded the widow $750,000 against the physicians and the case against the company is still in mediation.
Elliott v Anaheim Hosp.
Filed
The daughter of a woman who died after receiving the wrong blood has sued the hospital. The technician failed to follow protocol and was fired after the incident. The hospital admitted its mistake as the patient received A+ blood instead of O neg. Top
US v Singer
Filed
Singer and other executives of WebMD are being accused of fraud for illegally inflating earning from 1997 to 2001. These people were part of a unit of WebMD called Manager Health Systems. This is now called Emideon Practice Services and they were not available for comment.
US v Brown
Filed
Dr. Zach Brown was accused of billing Blue Cross for procedures never performed. The amount is over $1 million. Dr. Brown spit the money received for the phony procedures with the "patients" or the cappers.
California v Pham
Guilty Plea
Tam Pham, his wife Huong Ngo and the wife's aunt Lan Nguyen pled guilty to bilking insurance companies and the two women were sentenced to suspended prison sentences and probation. Pham is expected to be sentenced to 13 years in prison. The patients were brought in from all over the US for procedures that were not needed in a surgical center owned by Pham. There were about 5000 fraudulent procedures and the clinic was paid about $15 million. The article did not mention any restitution.
Nunez v Temple Profess. Ass.
ED Penn.
Dr. Nunez was 65 years old when he was let go from the Association. He claimed it was for age discrimination. The University stated it was because he was board certified. Dr. Nunez was originally hired as a back-up for another physician who was engaged in teaching. The position called for a board certified physician. He was told he had to be certified and was removed as a full time person. He agreed to work part-time and finally was let go after the University hired a board certified younger physician for the full time position. All courts agreed with the University that the physicians was not qualified for the position which required board certification. Top
Stringfellow v Oakwood Hospital
ED Mich.
The patient had an aortic dissection when presenting to the ED. The patient was discharged and died. The court had no problem dismissing the EMTALA claim since the plaintiff's attorney did not state a claim for inappropriate screening not that the hospital failed to stabilize the patient. The court did let all the state actions continue against the hospital. 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.