January 15, 2004 Recent Legal News



Fraud and Abuse


Mentally Ill


Peer Review


Amer. Acad. of Pain v Med Bd. of Cal.
9th Circ.

The 9th Circuit upheld a California  regulation that states only physicians accredited by the American Board of Medical Specialists or other Boards that have met the high standard enunciated by the law can use the words "Board Certified" in their ads.  The other physicians can say they are accredited by the the other boards but can not use the magical phrase.  This helps the plastic surgeons who are board certified and who state so in their ads.  If a surgeon is an ENT, he/she may state, if true, Board Certified in ENT in their ads but not board certified in cosmetic surgery.  The court stated the State's rule and the Medical Board of California's right for the public interest overrode the physician's right of free speech.

Solomon v St. Bd. 
Md. App.

The Board issued a subpoena to Solomon for her medical records.  She did not comply and the Board revoked her license.  She argued that she had no duty to turn over the subpoenaed patient records since there was no current investigation.  The Board stated they were to evaluate compliance with a prior investigation.  The physician also stated that the subpoena was too broad and violated patient confidentiality and HIPAA.  The court bought none of it and believed that the Board's interest in protection of the state citizens overrode the privacy concerns.  License revoked.  

N.C. Med. Soc. v Blues

 The North Carolina Medical Society has sued Blue Cross and Blue Shield of North Carolina for unfair business practices causing harm to the physicians. The suit is not for damages but for business changes.  The Blues have been stonewalling reform efforts for years.  

Valley Family Medicine v Allee-Kiski Med Ctr.
Not yet filed

The medical group stated that they would no longer admit patients to the Pennsylvania hospital but to another one. The cause of the switch was a buy out of the medical group by the new hospital. The Alee hospital countered by an advertising campaign in the press advising patients to find a new practitioner that is a user of the hospital.  They also sent letters to the patients of the medical group, a potential violation of HIPAA. 

Acad. of Med. v Aetna
Judge Approval of Settlement

A judge from Kentucky and another from Ohio have approved the settlement between the plaintiff and Humana.  Humana had agreed to increase their reimbursements to the greater Cincinnati physicians significantly over the next three years.  The other three insurers in the class action suit are Aetna, United and Anthem.  All significant pre-trial issues raised by the insurers have been adjudicated in favor of the plaintiffs.  

Haskell v Ohio
6th Circ.

 Haskell, an OB, sued Ohio over its law prohibiting dilatation and extraction procedures.  The tension is between the right of the physician to tell the patient about all the procedures available to her and then actually do the chosen procedure and the punishment for the physicians if they actually perform the procedure.  It would be a felony with a prison term of 2-8 years prison time.  There is an exception for the mother's health.  The US Supreme Court recently struck down a Nebraska law outlawing the procedure since it had no exception for the life or health of the mother.  This will probably also be looked at by the US Supreme Court.   Top


Serrano v Family Practice Clinic 
Filed Mass. Ct.

Ms. Serrano, a 41 year old from Fitchburg, Massachusetts, has filed suit against the Family Practice Clinic and Women's Medical Associates.  The suit alleges that the plaintiff was misdiagnosed with HIV and treated since 1994.  Recently she has had six tests for HIV, all of which were negative.  She apparently had not had any confirmatory tests since her original test.  If true there could be large damages due to past medical outlays and resulting injuries plus the standard emotional distress.  She also has a 13 year old daughter that is an additional plaintiff.   

Robers v Condell Med. Ctr.
Ill. App. Ct.

The plaintiff sued the podiatrist and the hospital for malpractice.  The podiatrist worked in an office building with the same name as the hospital.  The podiatrist had no other relationship with the hospital and was not even on the hospital staff.  The issue was apparent agency.  The plaintiff lost since there was no agency of any kind in this case. I hope this cost the attorney who took this case to the appeals court a significant amount of money.  

In a case of equal stupidity, a physician who authored a peer review report placed the report in the patient's medical record.  When the patient sued, the record with the peer review was given to the attorney.  The court found that the  physician did the placement on purpose and therefore blew any peer review protection. 

Class v St. Jude Medical
OK to Sue

In a class action law suit a judge decreased the potential number in the plaintiff class and stated the case could go to trial.  The issue had been whether or not a medical device maker could be held liable even though the device had been approved by the federal regulators. 

Roessler v Sarasota Hospital
Fla Ct. App.

 Roessler sued an independent contractor radiologist at the hospital for malpractice and the hospital under the theory of apparent agency.  He was admitted via the ED and had multiple services within the hospital including radiological services.  The Court stated that he had no choice as to the radiologist who read the films and this may be enough for apparent agency.  Apparent agency is when a principal creates the appearance of an agency, the third party relies on the representation and the third party changes position in reliance on the representation.  To trial.

Johnston v Sisters of Charity
Ky. Ct. App.

Just north of the above case, this one was decided.  Johnston sued for wrongful death the pathologist who misread slides.  The trial court and the court of appeal agreed that the pathologist was an independent contractor with minimal supervision by the hospital.  Also, the admission forms stated unambiguously that pathologists were independent contractors.  

Tomaino v Burman 
NJ Super. Ct.

Tomaino won $3 million in a malpractice case in trial court.  An appeal followed.  The appeals court stated the amount was excessive and had the trial court either do a new trial or have a remittitur. The trial court allowed the Supreme Ct to review the case.  They stated the appeals court should have only done the remittitur and said the trial court would be better.  The trial court did not agree with the excessiveness and ordered a remittitur of one cent.  The appeals court said nope, do a new trial on issue of damages and to a new judge.        Top  

Fraud and Abuse

US v Memorial Hermann Health Network Providers

The physician group has settled with the feds for an illegal messenger model.  The consent decree states that the 3000 member group will no longer exchange information about any one physician wiliness to deal with a plan.  The FTC stated that the group increased prices by fixing prices in contract negotiations.  The group periodically polled its members regarding the minimum fee they would accept for a service.  The FTC stated the group would then use this information against payors.

US v Tenet
Whistleblower Settlement

 The government has awarded $8.1 million to the two who filed the first whistleblower suits against Tenet in the Redding Medical Center case.  One of the men to get the money is a Catholic priest and the other is his friend.  The priest was told he needed immediate surgery but his friend convinced him to get it in Nevada.  The repeat tests showed no heart problem.  They then confronted the hospital administrator and when there was no satisfaction went to the FBI.  This closes the case on others who have claimed the money.    

US v Meridia Health Sys

A Cleveland Clinic subsidiary, Meridia Health Systems, has agreed to a settlement for false Medicare claims.  They will pay $2.3 million for their departures.  

Wisconsin v Capeside Cove Good Samaritan Nursing Home
Proposed Fine

Wisconsin is proposing a fine of $1.5 million for the nursing home for "inexcusable performance of the facility".  One elderly woman was sexually assaulted by her brother-in-law and another was beaten by her husband with no staff intervention.  There were a total of 11 federal deficiencies and placing residents in immediate jeopardy and providing substandard care.        Top


Sisters of Providence v AA Pain
Alaska Supreme Ct.

A hospital and anesthesia group conspired to restrain trade under state antitrust law.  The two had an exclusive contract for the hospital.  One physician was left out but was grandfathered and allowed to continue.  The anesthesia group was unable to provide the necessary care under the contract with a negative effect on the quality of care.

Linblad v Parkridge Health
Tenn. Ct. App.

A ED physician with an exclusive contract with the hospital was found to have diverted narcotics.  The parties agreed on the termination of the exclusive contract but the hospital also took away the physician's privileges.  The physician sued over the privilege issue and lost.  The court stated the contract allowed removal of privileges with loss of the contract.  No hearing was necessary (clean sweep provision).  The contract superceded the bylaws.

Chomer v Logansport Mem. Hosp.
USDC SD Indiana

Chomer, an ED physician, told Medicare/Caid patients they should not come to the ED for treatment for simple colds.  He was reprimanded by the hospital CEO for this but persisted in his telling of patients.  He eventually reported the hospital for encouraging these visits.  The hospital took him off the ED rotation and his group fired him.  Chomer sued and the hospital asked for summary judgment.  The Court said summary was not correct since Chomer had alleged the necessary facts to support his case on both retaliatory firing and interference with contract. 

Gianetti v Norwalk Hosp.
Conn. Supreme Ct.

Gianetti, a plastic surgeon, was denied reappointment to the hospital in 1984.  He sued and won $1 for nominal damages stating the bylaws were a contract and he had not been given due process.  Gianetti appealed and the appeals court awarded him "lost volume seller" damages of the amount he would have made had he been reappointed.  The amount was only for one year since the hospital appointments were one year appointments.  The Supreme Court stated that Gianetti was not a lost volume seller as a matter of law.  The lost volume seller theory does however apply to personal service contracts.  The case was sent back to the trial court for further hearings. 

Parkinson v Anne Arundel Med. Ctr.
4th Circ

Parkinson, the chief of ultrasound at the hospital had a heart attack.  His physician told him to cut back his hours and not work overtime.  He  went from 70 to 40 hours per week.  In December 1999 he refused to work overtime and was suspended and demoted to senior ultrasound technician.  Parkinson then sued for failure to accommodate under ADA.  The lower court and the 4th both stated he did not prove he was disabled therefore did not come under the ADA.  He also failed to show the non-retaliatory reason for the suspension offered by the hospital was a pretext for retaliation.

Ira Davenport Hosp. v Ha  
NY App. 

The hospital sued Ha for return of money given as a recruitment subsidy since Dr. Ha did not stay five years. However, the term of the agreement was for two years and the defendant left after the term.  The court noted that the defendant did not terminate the agreement but it expired of its own volition, no money was owed.   Top  

Mentally Ill

Qawl v California
Ca. Supreme Ct.

In an important decision the California Supreme Court ruled that mentally ill inmates who are ready for release may not be forced to take anti-psychotic meds. The people have freedom of choice and unless declared incompetent by a judge retain the right to refuse medications.  This means that those in prison who have served their time and still are mentally ill may be kept for the rest of their lives in a mental institution if they pose a danger to society.  There are currently hundreds of such people in he state mental institutions.  This ruling mimics a similar one for those still in prison.  That 9th Circuit ruling goes against the rulings from other Circuits.      Top 


Trovillion v Northwest Med Ctr. 
Arkansas Trial Ct.

Trovillion, DPM, was being proctored by the hospital under initial privileges.  The proctors turned in negative reports and apparently removed from the staff and reported to the National Practitioner Data Bank for being incompetent.  The podiatrist states the report was false had has ruined his life.  The hospital states they were required to make the report and the closest item on the NPDB checksheet that fit the reason for the report is incompetence. 

The jury awarded Dr. Trovillion, DPM, $750,000 for defamation.  The award was split $500,000 for compensatory and $250,000 in punitive damages.  The judge then ordered the hospital to remove the report in its entirety from the data bank.  The key issue was the loss of immunity when Northwest Hospital knew of the falsity of its report to the data bank. The proctors had never said Trovillion was incompetent. There will probably be an appeal of the decision or a settlement.         Top

Peer Review

Rdzanck v Hospital Serv. Dist.

Rdzanck had her staff privileges reduced.  She sued the hospital and all involved under federal law with associated state claims.  The judge ordered a hearing on the the federal claims and the plaintiff issued a subpoena duces tecum for the peer review records of all the other cardiologists on the staff.  The hospital issued a motion to quash.  The judge ruled there is no federal peer review privilege and the records need to be produced.  However, the judge did order the records are to remain confidential among the parties involved.  This goes with similar judgments stating that even HCQIA offer no federal peer review protections.     

Mahmud v Bon Secors Charity

 Mahmud, a Pakistani Muslim, was an employee of the hospital with offices across the street from the hospital.  She was a severe critic of the care given at the hospital and made an appointment with the JCAHO to complain about the care.  This was cancelled after the hospital warned her not to complain.  She was then shammed for quality of care issues which a separate group felt were unjustified.  She was accused of having a possible mental disorder and after seeing a mental health professional and having the state investigate her mental capacity was found to have no deficiencies.  She lost her position at the hospital and her office.  She sued but the court tossed the suit since it was based on faulty peer review.  New York has a law stating that all peer review claims must go before a Public Health Council prior to filing suit.  Dr. Mahmud did not do this and therefore had not exhausted all her administrative steps before filing suit.  The claims for slander could go forward since they were based on being called "crazy" and not on medical grounds.    

D'Angelis v Buffalo General Hospital
Supreme Ct. NY 

The plaintiff sued the hospital for malpractice and asked for documents of the peer review session regarding this case.  The hospital moved to quash.  The trial court allowed the statements of the doctor being peer reviewed and another physician at the hearing to be made available to the plaintiff.  On appeal the court agreed with allowing the statement of the physician directly involved with the case to be admitted but not an outside physician.  This case shows one needs to be very careful what one states in a peer review hearing in New York.   

Smith v Delago 
NY App. Division

The plaintiff sued for malpractice and obtained documents concerning the New York Department of Health's investigation of the incident.  The court refused the plaintiff from using the report against the defendant since the information came from the hospital's protected quality assurance committee.  The court did allow the use of the Department's statement of deficiencies with redaction of the conclusions of law and opinions of the Department.            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.