July 1, 2005 Recent Legal News
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Payne v Anaheim Med Ctr.
Cal. Ct. App.
Payne sued the hospital for violations of the Unruh Act (a California law that prohibits discrimination on racial and other grounds). Payne alleged the hospital caused him emotional distress by covering up two episodes of racial discrimination. The hospital had stated they would investigate and then give Payne a report. The hospital attempted to get rid of the case by stating Payne did not follow the bylaws. This was shot down since the bylaws only relate to dismissal and this was not the issue. The court also stated that Payne had standing to sue under the Act. To trial or settlement. Top
US v Lawrence
10th Circ.
Dr. Thomas Lawrence, a chiropractor in Denver, was convicted of improper coding, mail fraud and improper provider numbers being used. He was sentenced to sixty month for fraud and a concurrent 72 months for money laundering. He had been previously suspended in Arizona using a different provider number than his Colorado number. Top
Levitin v Brown
Ca Ct. App.
In an interesting case that may be beneficial to plaintiffs with a delay in diagnosis, the court stated that the plaintiff could sue the defendant radiologists for missing a tumor in her breast six years prior to the metastatic axillary lymph nodes being found. The court found the defendant had satisfied their initial burden to negate the causation but the plaintiff had raised a triable issue as to the harm suffered. The plaintiff showed decrease survival, increased growth of the primary tumor with spread and fear of cancer due to the probability of recurrence due to delay of diagnosis. The court did not that there was a gap that was needed to show that no harm resulted from the delayed diagnosis.
Weiner v Fisher
Pa Super. Ct
Pennsylvania has a law that to qualify as an expert in a med mal case one needs to be in active practice or retired less than five years from the date of trial. The expert did not qualify per se but did since he was teaching in Gastroenterology not the requested field of endoscopy. All that is required is a "de minimus" level of teaching is required to ensure sufficient education, training, knowledge and experience to provide credible competent testimony.
People v Columbia Presbyterian
Medical Ctr.
To Be Filed
In a poor display of honesty the hospital knew for over a year that it's water pipes contained Legionnaire's Disease. It failed to tell anyone on the staff or it's patients. It spoke up after six patients contracted the disease and one died. The hospital's insurance carrier should get a lot of ink for the large numbers they will need to write to the patients.
Patients v Elevator Company
To Be Filed
A third hospital in North Carolina attempted to sterilize instruments in hydraulic fluid. Wake Forest Baptist received barrels of hydraulic fluid labeled as soap and proceeded to clean their instruments with it. However, this hospital, as opposed to Duke and Durham Regional actually felt the instruments and discovered the error. They then rewashed the instruments several times. No patient was touched with the hydraulic fluid instruments. Duke has sent letters to patients stating they are at no risk of infection but they did not address the emotional issue of fear of autoimmune disease.
Henslee v Provena
ND Ill.
A physician who was paid per diem to work in an intermediate care facility was sued by a patient for malpractice. He tried to defend under the Good Samaritan Act stating the patient never was billed by him. The patient was billed by the physician's employer which means the patient was charged. Nice try. No Cigars. Case to Court.
Ruiz v Barnes-Jewish Hosp.
SD Ill.
In a bit of good lawyering for the plaintiff, pictures of an Illinois Hospital were taken that showed the logo of Barnes below the hospital name. You can get more money from the parent than the hospital and Illinois is worse for the defendant than Missouri. The court bought it and stated that Barnes had continual contact in Illinois and should have realized it could be sued in Illinois.
McCaffrey v La Grange Hosp
Settlement
Mr. McCaffrey has settled his claim against the hospital for malpractice. He is now a paraplegic because the hospital did not respond promptly in their care and transfer of the patient. He had a spinal abscess with fever an back pain two weeks post op spinal surgery. By the time of transfer he had lost all motor and sensory abilities of his lower extremities. The settlement was $10 million.
Shoaf v Florida Hosp.-Altamonte
Settlement
Shoaf, a newborn, was deprived of oxygen during delivery and is now has severe cerebral palsy. The jury verdict was for $24 million against the OB. He only had $250,000 in insurance. The hospital agreed to $10 million and another OB agreed to $250,000. The problem with the case is the judge allowed the family only $4.6 million and the law firm the same amount. The remainder is for Medicaid repayment.
Doe v Community Hosp. Fresno
To Be Filed
At Community Hospital, Fresno, California, a "closely watched" seven month pregnant woman with ruptured membranes had her baby die and no one knew for over two hours. One of the nurses then lied and filed false nursing reports. The two nurses have been reported to the state but one is a traveling nurse used for the ratio law in California. The traveler is the one being reported for lying. This hospital has been in trouble before with medical staff and significant nursing complaints. CMS had threatened to revoke their certification but didn't after the hospital hired a nursing change company. Top
Szold v Med. Bd. of California
Ca. Ct. App.
The statute states that the Board is to publish on it web site disciplinary actions OF other states. Szold was placed on probation and following his probation his dates of probation were published. He filed a writ of mandamus to have all removed. The Court found on the legislative history the wording should have read disciplinary actions of this OR other states.
Med. Bd. Florida v Rosin
Filed
Dr. Michael Rosin of Sarasota Florida has been accused of gouging patients. The dermatologist has constantly diagnosed skin cancer and seems to always do four levels of Mohs surgery, when the norm is 10% of the cases need that level of surgery. He was turned in by a patient and a former employee. The Board has issued an emergency order forbidding Dr. Rosin from doing any cancer surgery. Dr. Rosin has a $1.43 million house in Sarasota Bay and another $800,000 home in Miami Beach, where his wife and children live. He has been turned in to the Feds on False Claim charges. Some of his biopsies show paraffin and one is of bubble gum. Top
Texas v ResCare
Settlement
ResCare, a provider of services for mentally ill in Texas, will pay a fine of $2.5 million for false billings to Medicaid. They billed for more time than actually spent. Top
US v Hospitals
Settlements
Wilson Medical center in North Carolina has paid $15,000 for not providing appropriate treatment to three patients. Behavior Hospital of Lutcher Louisiana has paid $30,000 for not accepting two transfers of psychiatric patients. Florida Hospital, an Adventist hospital in Sebring Florida, has paid $20,000 for failing to provide appropriate medical screening and stabilization to one patient three times in a two week period. This patient later died of a parasitic infection. The University of Alabama paid $40,000 due to inadequate screening of a woman with an urinary tract infection.
Burton v Wm. Beaumont Hosp.
ED Mich.
Uninsured patients filed suit in federal court to force hospitals from having them sign promises to pay for services while in the emergency department. They brought the suit under EMTALA. They lost since the hospitalize does screen and stabilize and there is no reason why during the registration process for all patients this promise can not be signed. This never got by the pleading stage. Top
AARP v TennCare
Tenn. Court
Tennessee has already won the fight over dropping TennCare rolls by a significant amount of people so the state may remain solvent. Now the state is embroiled in a controversy as to what is medically reasonable for diagnosis and treatment for those who remain. The state wants, as other states do, decide the reasonableness of what should be automatically covered and what needs special consideration. The AARP has now entered into the controversy by sending three lawyers. I do not understand how the AARP can pay for attorneys without the consent of the members of the organization. As a member, I resent this use of my dues. Top
Marin General v Marin District
Filed
Who's hospital is it? California has a seismic law that requires all hospitals be up to seismic code. Marin General Hospital (and it's parent Sutter Health) is suing the landlord of the hospital to determine who should pay for the upgrade. The plaintiff wants the court to rule how much each pays. The law states the fix must be by 2013 but the lease from the District expires in 2015. The two sides have been fighting for years and this is an extension of their bickering. Top
Mignano v Meharry Med. College
Filed
Mrs. Mignano was arrested and arraigned for the murder of her disabled daughter. She spent a week in jail without bail. The autopsy report showed a lethal dosage of Phenobarbital. The test was done at Meharry Medical College and Toxmed Reference Laboratory. The medical director was Dr. Charles Harlan, who was fighting to retain his medical license. He failed in that attempt. It turns out that several days later the corrected blood test came back and Mrs. Mignano was released from jail. Nobody ever apologized for the blunder. The lab changed its report after other labs disagreed with its methods.
Howerton v Lakeland Electric
To be Filed
Mr. Howerton's son owed a disputed bill to the power company. The bill was paid on line and the message stated it would take two days to process. It took four. Mr. Howerton's son had taken his father from a nursing home to his home the day prior to the electricity being turned off. Mr. Howerton, age 86, had significant emphysema and needed oxygen. He died minutes after the electricity was turned off. Top
Davis v Hildyard
Kansas Ct. App.
Dr. Davis sued Dr. Hildyard and Dr. Ketting for defamation. The defense argued that the statements were part of peer review and protected. Dr. Davis believes that the statements showed malice and the case should go forward. The problem was the defamatory statements were made in meetings that were considered peer review meetings and therefore privileged under Kansas law. If the statements were repeated out of the peer review meetings by others, the doctors making the statements were not liable. Case dismissed.
Hamrick v Charleston Med Ctr.
W. Va. Circ. Ct.
Dr. Hamrick decided to self insure for malpractice coverage. He established a $1 million self funded program instead of paying for coverage via a commercial carrier. The hospital suspended him for not doing their bidding. In one part of the case the court forced the hospital to put Dr. Hamrick back on staff while the case was in trial. Dr. Hamrick then went on to win the right to self insure. He is now going after the hospital for interference with his right to practice when they took away his privileges. The hospital spokesperson attempted to put a positive spin on the case but the only spin is that they lost. Top
Murfreesboro Med v Udom
Tenn. Supreme Ct.
The state high court threw out non-compete clauses for physicians in the state. The only exceptions are those that are statutory (hospital practice purchases and med school practice plans). The trend continues. 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.