July 1, 2004 Recent Legal News

Peer Review

Doe v NY Medical Board
NY Ct. Appeals

The New York Court of Appeals has stated that public information about a physician misconduct must be related to substantiated charges.  The unnamed physician had sued the State Board for placing unsubstantiated charges against him on the web site.  The doctor had been alleged to willfully abuse a patient, be morally unfit and have a fraudulent practice.  The state board after an investigation found no professional misconduct.  The doctor was reprimanded for a prescription not being noted in a chart.  The Board lawyers stupidly asked that the web site continue to have all the charges on it and the public would discern that when the charges were unsubstantiated they should ignore them.  The high court said that was ridiculous.  The site needs to be fair to the physician and to the public.

Chein v Shumsky
9th Circ

The 9th Circuit has given the green light to expert witnesses lying under oath.  The "expert", Chein, stated under oath he was an orthopedic specialist with one office.  In actuality he is a rehab specialist with several offices.  One might think this is not a big lie but think about a jury believing that this person was an orthopedic surgeon discussing the standard of care instead of a possible professional expert witness.  The court stated that the lie had to influence the jury for the liar to be convicted of perjury.  They said this lie wasn't bad enough to influence the trial or the jury, so the perjury conviction was reversed.

Savas v William Beaumont Hosp.
6th Circ

The doctor was terminated from the hospital staff and sued under gender discrimination, retaliation, intentional inflection of emotional distress and tortuous interference with business.  She lost on all counts.  She was not an employee so the discrimination that only applies to employees did not apply to her.  The Michigan law is that the court will not review a decision on hospital privileges and so went her tortuous claim.  She did not show any outrageous conduct to support her intentional inflection of emotional distress claim.  She should have sued her attorney for taking the case and not knowing the law.

Smego v Stamford Hosp.
Conn. Super. Ct.

Smego was confronted by the medical staff leaders to discuss possible suspension.  Smego offered to take a leave of absence and did. He was never suspended and later resigned. The hospital reported him to the Data Bank and he sued.  The Court stated that there is a factual dispute whether or not an investigation was ever done.  Therefore the case may go to trial.   

Atteberry v Longmont Hosp.
D Colo.

 Plaintiff sued under HCQIA in federal court and requested quality assurance reports, peer review reports and credentialing files.  The court stated these were not protected under HCQIA and federal law trumps state confidentiality law.    Top

Malpractice

Aetna v Davila
US Supreme Ct.

The US Supreme Court unanimously disapproved the 5th Circuit decision stating the underlying case against an HMO was a mixed eligibility and liability case.  The court stated that this case was truly a pure eligibility case and therefore is preempted by ERISA. The case is remanded back to the District Court to toss out. This means that most , if not all, malpractice cases against HMOs based on their rationing of care will be tried in federal court and will only be allowed minor damages.

Stottlemeyer v Ghramm, MD
VA Supreme Ct.

The patient attempted in a malpractice trial to cross examine the physician regarding prior malpractice and peer review.  The courts did not allow this since it had no bearing on the case at hand.  The trial court also said the doctor was not negligent, therefore making the whole area of negligent credentialing moot.  Another trial attorney wasting the patient's or hopefully his own time and resources.    

Fullerton, MD v Florida Medical Assn.
Filed

Dr. Fullerton of California has filed suit in Florida against the medical association and three physicians.  Dr. Fullerton was an expert witness in Florida for the plaintiff against the three physicians.  The physicians won and then reported Dr. Fullerton to the Association for false or misleading testimony.  Florida has a panel to determine if such is the case and if so to discipline the physician.  Dr. Fullerton is suing for defamation.  Other states such as California also consider misleading or erroneous testimony grounds for unprofessional behavior and attacks on the license of the individual. Also, the American Association of Neurological Surgeons has a long standing and court approved history of disciplining physicians who give junk testimony. 

Chambliss v Coastal Area Health Ctr.
NC Superior Ct.

Chambliss went in for artificial insemination and was inseminated with unwashed sperm which caused her pain and potential for infectious disease.  The Clinic admitted fault and the jury determined the penalty to be $85,000 in compensatory and $350,000 in punitive damages.  The latter will be reduced. 

Santillan v Duke
Settlement

The parties in this infamous case where the patient received the wrong type heart-lung bypass has been settled on confidential grounds.

Petrou v Southcoast Emerg. Grp.
Cal. Ct. App.

California has a statute that only an emergency room physician who has practiced within five years is allowed to testify against another ED physician (Health & Safety Code 1799.110).  The statute never stated when the five years started-from the trial or from the incident.  The lower court stated from the trial.  The Court of Appeals stated from the date of the malpractice since the standard of care is at the time of the alleged malpractice and not at the time of the trial.   Top

Non-Profit Hospitals Sued

Plaintiffs v Non-Profits
Filed

The old tobacco plaintiff attorneys have filed class action suits against non-profit hospitals across the country for billing the uninsured full bore while allowing discounts to HMOs and other insurers. Defending this suit will continue to take more money out of the limited amount of money available for patient care.  The attorneys really don't care as they want their payday as is typical in class action suits, where the attorneys get 70-80% of the money and the injured get almost nothing.         Top 

Fraud and Abuse

US v Harvard, Deaconess
Settlement

Harvard and Beth Israel Deaconess Hospitals have agreed to pay the government $2.4 million for misapplying money received in federal grants.     

US v Radiology Regional Ctr.
Settlement

The government settled with the group from Fort Meyers, Florida for $2.5 million and a five year corporate integrity agreement for billing for procedures not ordered by treating physicians.  The whistleblower got $443,378.  

US v Valdez, MD
Plea 

Romulo Valdez, MD, pled guilty of defrauding Medicare and Medicaid of $725,000 by conspiring with Benison Medical Supply of San Diego for unnecessary motorized wheelchairs. He faces five years in prison and a $250,000 fine.       Top

Marijuana

9th Circ. Order

The 9th Circuit ordered its lower courts to reconsider their decisions against marijuana dispensaries.  The Court had ruled the fed law only applies to those plants which affect interstate commerce.  The feds appealed the ruling to the US Supreme Ct.  The dispensing agents were enjoined from distributing marijuana by the lower courts.  It is interesting that the same day this was announced, a city council voted to ban medical marijuana dispensaries in their city.  

Ashcroft v Raich
US Supreme Court

The United States Supreme Court has agreed to hear the case involving a 9th Circuit ruling that the federal law does not apply to California marijuana which is totally intrastate.  The Controlled Substance Act states the the government can control all manufacturing, possession and distribution of any drug it lists.  The Supreme Court will need to look and opine on the interstate versus the intrastate matter.  The case should be heard this winter and the decision should be next spring.      Top

Employment

Ulrich v San Francisco
USDC

Dr. Ulrich won $4.3 million from San Francisco for their heavy handed treatment of his activism.  Dr. Ulrich protested the layoffs of fellow physicians at the city owned and run Laguna Honda Hospital.  The doctor worked at the hospital for nine years and received a letter that his practices were under investigation three days after he signed a letter protesting the proposed layoffs of three doctors.  He then resigned but after he found that his resignation while under investigation was a reportable offense to the medical board and the data bank, he attempted to take back his resignation.  The hospital refused to allow that and did the reporting which has stymied him from getting other jobs.  The medical director of the hospital refused to change the report to show the resignation was to protest the firings and not for quality reasons and also refused to tell the Data Bank about the medical board clearing his practice.  The charges against Laguna Honda were retaliation, violation of free speech and violation of due process for not giving him a chance to clear his name.  The hospital will appeal. 

Gupta v Eastern Idaho Tumor
Tex. Ct. App.

Gupta attempted to get out of his contract with the clinic by asserting the clinic who furnished all equipment, office space, etc. was in the unauthorized practice of medicine.  The court rightfully disagreed stating that the physician was independent in decision making toward patients and fees.         Top

Product Liability

McAllister v Metabolife
Jury Texas

The plaintiff stated she had a stroke resulting in brain damage after taking the now banned Ephredra.  The theory was that Metabolife maliciously and falsely told state and federal regulators that its product was completely safe.  The plaintiff received $2.4 million in compensatory damages and $5 million in punis.  Watch for the rest of the many cases over this product to be tried.        Top

EMTALA

Nolen v Boca Raton Hosp.
11th Circ.

Nolen went to the hospital with triplets.  She was seen by a nurse and a physician.  She had fetal monitoring and nothing showed pre-term labor.  Two days later she went into pre-term labor and the babies died.  She sued under EMTALA.  This case was rightfully tossed.  She had more than an adequate screening exam.  EMTALA does not address malpractice.  EMTALA does not require hospitals to have written screening procedures, according to this court.

Tinius v Carroll County Sheriffs
ND Iowa

The Court tossed this case, also for good reason.  The plaintiff was under the custody of the peace officers and they wanted a urine sample for testing.  They forcibly took him to the hospital and the ED personnel forcibly catheterized the plaintiff.  The hospital defended on EMTALA grounds that they have to treat all patients.  Wrong, only if the person asks for treatment.  Here the plaintiff never asked and the police had no authority to ask for him.  The case goes to state court against the County and the hospital.        Top

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