July 15, 2006 Recent Legal News
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New Hampshire Med Board v Bennett
Superior Ct.
The idiots at the medical board wasted money to get publicity by going after Dr. Bennett. He is the one who has a big mouth and says what he thinks. He told one patient that she should get a gun and shoot herself and another that she was so obese she would only be attractive to black men. Poor taste but not illegal. He took the medical board to court and won. The board is now considering wasting more money appealing or going with the program. He is now planning on suing all that were involved for malicious prosecution.
Iowa v Jacks
Iowa Board
Dr. Tobin Jacks of Knoxville, Iowa, has been accused by the Iowa Medical Board of habitual intoxication or addiction to the use of drugs or alcohol. He no longer works for the hospital. Last year Dr. Jacks was fined $2000 and placed on probation after the Board filed the third drug charge against him since 1987.
Medical
Board of Arkansas v Mann
Arkansas Board
The Board has stripped Dr. Randeep Mann from prescribing narcotics after 10 patients died due to an overdose of narcotics. He kept his medical license.
Iowa
Medical Board v Neff
Iowa Board
The Board has fined orthopod Dr. Scott Neff $2500 for providing substandard care in three cases. He also has to take infection control training and personally see patient admitted to the hospital on his service. Neff had been fined $10,000 in 2001 for a incident in the OR. Top
US v Makki
Filed
Dr. Ali Makki of Michigan had 40 charges filed against him for Medicare fraud and immigration fraud. He was accused of falsifying records and doing unnecessary medical tests. He also was charged with providing two aliens who tested positive for syphilis with a negative test. To make matters worse he has also been charged with prescribing controlled substances without a medical purpose. He faces 10 years and a $250,000 fine.
US v
Adams
Guilty
Mr. Adams illegally posed as an American Indian to receive healthcare benefits from the Indian Health Service. He has been fund guilty and faces 10 year in prison and a $250,000 fine. Top
Bridget B. v John B.
California Supreme Ct.
Washington v Carlsen
Filed
Mrs. Carlsen has been charged with second degree kidnapping for taking her infant son out of Children's Hospital in Seattle. She did not her son to have surgery for a kidney condition and the court had given temporary custody to another for consent purposes. The child was found and returned to the hospital. The hospital would not disclose if surgery was performed or what the condition was that necessitated the temporary custody. The physicians hope that Mrs. Carlsen is not jailed for this.
Physicians v Texas
Texas State Attorney Office
Texas is leading the way in the law of unintended circumstances. The legislature passed a law in 2003 that allowed criminal charges including possible capitol punishment if a fetus was harmed unless it was for a physician performing a lawful medical procedure. In 2005, the Texas legislature passed a law prohibiting physicians from performing an abortion on a minor without parental consent or a court order plus outlawed third trimester abortions except to save the life of the mother. This potentially lead to capitol punishment or felony convictions for physicians. The Texas Attorney General will now need to sort out the mess caused by the legislature.
Pennsylvania v Kandiyll
Jail
Pennsylvania has tried, convicted and sentenced a Hahnemann University surgical resident Dr. Purple Kandiyll to four weekends in jail and six year of probation for his indecent sexual behavior toward another Hahnemann resident.
US v Missouri
DC WDM
Missouri has problems with carrying out the death penalty. A federal judge has stated the state should use a board certified anesthesiologist for the mixing and giving of the lethal cocktail. The state sent out letters and got no yes replies. The current physician that does the cocktail is dyslexic and occasionally does not use the proper formulary. This same argument is now raging in other states. A law professor states he doesn't understand because we are giving these people the death we would all want.
Clarke v Oregon University
Or. Ct. App.
Oregon has a state law that limits the University's liability to $200,000. The problem is that the law does not extend that protection to the individuals. Also state law makes the University liable to the acts of its employees and essentially removes any protection from suits. Clarke, a brain injured child, sued due to oxygen deprivation after a surgery to correct a congenital heart defect. This ruling allows the suit against the University to proceed and the asked for damages are $11 million in medical, $1.2 in economic and $5 million for pain and suffering. The University will appeal and if it loses will need to pay out an additional $14.5 million per year in premiums. This will be true as well for all state or municipal public entities. The legislature will need to act to overcome the decision.
Powers v Your Druggist
Florida Supreme Court
The Florida high court has somewhat ruled that the above case can go forward. Powers was suing on the premise that the pharmacy should have known that the combination of drugs prescribed and the frequency would have caused harm. The trial court ruled that the pharmacy had no duty. This was overruled by the state court of appeals. The Supreme Court originally agreed to hear the case and then turned the case down allowing the court of appeals decision to stand. The facts are a Dr. Thobani prescribed six different narcotic or narcotic type drugs for Mrs. Powers who died.
v Donnfeld
NY Court
A plaintiff sued the nationally acclaimed physician for malpractice in a LASIK procedure and lack of informed consent. There was an eight page consent form, a video, a brochure and a general discussion of the pros cons and usual risks of the procedure. The jury found for the plaintiff and awarded $1 million for past pain and suffering, $1 million for future pain and suffering and $ 1 million for future medical expenses. This is a great case to show why tort reform is necessary. Top
EMTALA
US v Citizen's Hospital
Settlement
Citizen's Hospital of Bolivar, Missouri, a rural hospital has agreed to pay a fine of $75,000 to settle three cases. This is the maximum fine that can be levied. The 74 bed hospital was accused of failure to screen a baby with bronchitis, a newborn with intestine breach and a teenager with a fractured vertebrae who became paraplegic. They will face civil liability for the above as well.
Heimlicher v Steele
ND Iowa
The plaintiff sued the ED physician for transferring an 8 month pregnant woman whose baby was stillborn when arriving at the other hospital. They sued under EMTALA (a stupid move by an attorney who should have known better). The physician was let off since there is no private right to sue a physician under EMTALA, only a hospital. The judge also dismissed the claim for sanctions against the physician and hospital for the same reason. Top
Belville v Wagner
Cal. Ct. App.
The radiology group stopped paying and assigning a radiologist after he fell behind by several hundred readings. The radiologist sued for state court claims and the group filed a anti-SLAPP claim against the radiologist. The group lost at trial and at appeal since SLAPP suits are only for those against public policy and there was none here. This was a only an internal dispute not involving the public. The radiologist could probably have slapped a SLAPP on the group for knowing filing a claim that had no merit.
Integrated Healthcare v
Fitzgibbons
Cal Ct. App
This is a real SLAPP suit won by the physician against the hospital. It was described in detail in the July 1 recent legal news section of this update. It is also follows the disclaimer below. Top
Nurses v NLRB
Labor unions, one of the fastest losing areas in the country, is hoping they will not lose more. They currently have 12.5% of the labor force of the country, down from 12.9% two years ago. The National Labor Relations Board (NLRB) is considering that people who are charge nurses and other people in supervisory roles are not eligible for union status. This stems from a US Supreme Court case in 2001 that stated that the Democratic controlled Board erred in determining nurses had no supervisory role and could unionize. The Board is now more Republican. The SEIU in the People's Republic of Massachusetts state that 10% of its 275,000 members may be affected. Best news for the country.
Nurses v Sacred Heart Medical Ctr.
NLRB
In a setback for nurses the NLRB ruled that nurses can not wear pins that state "RNs demand safe staffing" in patient care areas. The message may disturb patients and the nurse's direct supervisors expressed concern over the impact the button may have on patients. Top
Virginia v Cherrix
Filed
Virginia has filed a claim to force 16 year old Abraham Cherrix to have another session of chemotherapy for his Hodgkin's Disease. Both he and his parents don't want another round even though the first one worked but not completely. The patient is being treated with herbs and diet from a Mexican clinic. This is somewhat different form the usual as the boy is 16 and can think for himself. He believes that another round of chemo will kill him.
Washington v Carlson
See Above Criminal
Ford v Cascade Health
D. Or.
An Asian/Black anesthesiologist sued a hospital and anesthesiologist group for the usual state court claims and the federal claim of discrimination for lack of reappointment. The court ruled for the hospital and group on all the state court claims but allowed the discrimination claim to proceed to trial. The plaintiff stated that White physicians with the same claims as the ones against the plaintiff were allowed to keep their positions. The court also stated that the hospital and group weren't protected under HCQIA since the remaining claim was not a peer review claim. The court also found that if a jury believed the discrimination claim then the state peer review protection would not apply either since the process would not have been done in good faith.
Wood v Archbold Med. Ctr.
MD Ga.
Looking at the complaint by the plaintiff physician alleging antitrust violation. failure to follow bylaws, intentional inflection of emotional distress and deceptive trade practices, the court ruled against the hospital in all but the trade practices.
Bundren v Parriott
D. Kansas
OB #1 filed a complaint against OB #2 for #1 filing a complaint against #2 with the ACOG due to the defendant's testimony against the OB #1 in a malpractice trial. The court stated that the complaint about OB #1 was protected under HCQIA and was substantially true. In other words, when you testify make sure what you say is true.
Fullerton v Florida Med. Assn.
Fla. District Ct. App.
A physician sued other physicians and the association for defamation and others based on a letter the defendant physician sent to the FMA about Fullerton's testimony about them in a med mal case. The court stated that all the defendants were immune from suit under HCQIA and the state peer review statutes. This was overturned by the Court of Appeal stating that testimony in court is not health care and not protected under state peer review statutes. HCQIA also does not protect the FMA in its role as one who examines non-member testimony even though other courts have stated that it does. 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.
July 1, 2006 Recent Legal News
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Integrated Healthcare v Fitzgibbons
Ca Ct. App
In a suit closely watched by not only the players but by many outsiders as well. Integrated (IIHI) sued Dr. Fitzgibbons for telling the truth. The truth was embarrassing to the Holding Company since it came out that they were in desperate financial condition. Fitzgibbons emailed the information that he had seen in the newspaper to the medical staff of which he was president. The hospital then sued to keep Dr. Fitzgibbons quiet. The hospital said that the email cost them $500,000 by Blue Cross postponed a final contract. Fitzgibbons lost in the trial court, but won at the higher court. He contended that this was an illegal suit under the California anti-SLAPP statute, strategic lawsuit against public participation. This is the Code of Civil Procedure 425.16. IIHI's takeover of Western Medical was opposed by the medical staff due to concerns over the financial condition of the outfit and its principal Dr. Chaudhuri, who had been involved in other failed ventures. A compromise was reached between the medical staff and IIHI. The settlement was based on IIHI having certain financial conditions in place. The did but then defaulted. This was reported in the paper and was the basis for the disputed email. IIHI attempted to say that the email was not in the public interest and lost on every point. The tried to say that Fitzgibbons email was unprotected commercial speech since he tried to buy the hospital and was on the executive committee. Both failed since the competitor status went when IIHI outbid Fitzgibbons' bid for the hospital and also hospitals and medical staffs can not be competitors by law. IIHI failed to show that they would prevail at trial. The email was opinion and not factual assertions. There went the libel action. It is interesting to note that the opinion chastises the attorneys for IIHI as not "reading a law closely" and could not prove the falsity of the accusations in the email. The Court ended by awarding the appeal costs to Fitzgibbons. Dr. Fitzgibbon's legal fees are up to $160,000. IIHI is considering an appeal to the California Supreme Court. This would be a dumber move than their original suit. The Supreme Court has previously ruled a broad interpretation of anti SLAPP which this case easily falls into. In October, 2005 the legislature passed and the Governor signed a bill that gives costs and attorney fees to those defendants who have been illegally sued under the anti-SLAPP law (AB 1158). It took effect immediately as emergency legislation.
Nurses v Hospitals
Filed
" Nurses" have filed suit against multiple hospital for price fixing nurses salaries. Behind the suit is SEIU who is attempting without success to unionize the nurses. The suit states that the hospitals agreed to a ceiling on nurses pay and exchanged information about their nurse payments. The hospitals see this for what it is, a shakedown. Top
Patients v Catholic Health West
Settlement
CHW has agreed to pay full or partial refunds to tens of thousands of patients the company is accused of overcharging the uninsured. This includes those patients in Arizona, California and Nevada. The percent refunded will depend on the income of the patients.
US v Barnabas Health Care
Settlement
Barnabas has agreed to pay the feds $265 million for overcharging for outliers. This is the same thing that Tenet tried and was also caught. Barnabas will have a monitor for the next six years on all Medicare billings. This will cost mucho dinero. The original basis of the suit was a whistleblower. The whistleblower will get between 15% and 25% of the settlement, between $40 million and $65 million. Barnabas got by with paying about half of the overcharges. The kindly government said that since Barnabas is the largest provider of healthcare in the state, it did not want to make them fold. That is a bad example for the court to set.
Mannick v Kaiser Health Plan
ND Ca.
Mannick is a wheelchair bound patient and the hospital had no wheelchair accessible shower or toilet. The Court stated that there is no rule under the ADA that makes buildings build prior to the passage of the ADA be made ADA compliant. There is nothing that states that if one part of the building is updated that the whole building must be updated. Top
ANA v HHS
Filed
The American Nurses Association has filed a suit against HHS for failing to enforce Medicare's nursing standards. It contends that JCAHO, which was not named, has lower standards for nursing than Medicare for which it is a deeming agency. Remember who JCAHO works for and is paid by-the hospitals. The suit is to force HHS to make JCAHO change its standards. Top
North Coast Women's v Superior Ct.
Ca. Supreme Ct.
California's Supreme Court has agreed to take the case where Christian fertility physicians refused to do artificial insemination on unmarried women. The suer is a lesbian but the physician claim that sexual orientation had no part in the decision. The appellate court had said the physicians had a right not to treat the woman. This is the second win for the physicians. Marital status is not a protected class in California, probably the only thing that isn't. The plaintiff has had three children by artificial insemination since she filed this case in 2001.
Wojewski v Rapid City Hosp.
8th Circ.
Dr. Wojewski, a cardiac surgeon had bipolar disorder. He was given privileges with restrictions. He had an episode of acute mania while performing open heart surgery. He was dismissed and sued under the ADA. The district court dismissed the physician's suit and the appellate court agreed. The doctor was an independent contractor and therefore was not protected under the ADA. The physician hired his own staff, performed skilled work, leased his won office and did not receive social security or other benefits via the hospital.
Physicians v UnitedHealth
Decision
Judge Moreno of Miami Federal Court has dismissed the physician class action suit against UnitedHealth and Coventry. The other insurers had previously settled. Judge Moreno could find no evidence of collusion by the two entities nor the use of the dreaded software that was used to automatically reduce physician fees. The judge chastised the companies for their practices but could not fault them legally, only morally.
Convicts v Executions
As all know the convicts on death row are challenging the lethal injection as cruel and unusual punishment under the 8th Amendment. The state that it's painful. A professor of Anesthesia has stated that which physicians knew, using Sodium Pentathal alone cuts out the pain argument. Of course, it would take the state about 45 minutes to kill someone this painless way as opposed to five minutes using the potassium. This is the same method as used by vets to euthanize animals.
Louisiana v DeLoach
Guilty Plea
Dr. Betty DeLoach has pled guilty to prescribing narcotics without a medical reason. She faces three years in the slammer. This follows by two weeks the guilty plea of a co-conspirator Dr. Joseph Gunther. Both have agreed to testify for the state against Cherlyn "Cookie" Armstrong, RN who ran three clinics called Scherer's Medical Center. Next door was the pharmacy also run by Armstrong. There is yet another physician, Dr. Suzette Cullins who has pled not guilty and will be tried in July. I don't understand how a nurse can run three clinics and pharmacies and how the physicians complained about how the clinics were run but continued to write the pre-printed narcotic prescriptions.
Arkansas v Mann
Accused
Dr. Randeep Mann has been accused of prescribing excessive amounts of controlled substances. His license has been suspended pending a hearing. The patients were drug addicts and abusers.
US v Main Street Pediatrics
Settlement
Main Street Pediatrics of Bridgeport, Connecticut, has agreed to pay $450,000 to the feds and private insurers for billing for vaccines it received for free. This is in lieu of a civil suit under the False Claims Act.
Tennessee v Yeates
Guilty Plea
Dr. Sheran Yeates, who has had his license revoked, pled guilty to overbilling. He billed an ear testing procedure for each ear and not each patient. He also has been charged with rape by a co-worker. Top
Malpractice
Lennon v Dacomed
Rhode Island Superior Ct.
Ten years ago Mr. Lennon had a Dura-II penile implant placed. It had a faulty design and gave Mr. Lennon a ten year erection. He has been embarrassed to go out and be seen with his grandchildren. Due to medical problems he can not have surgery to remove the faulty device. The jury award him $750,000 against the device maker but the judge reduced the award to $400,000. The company is out of business but I assume they had purchased liability insurance.
Shutler v Augusta Health
Va. Supreme Ct.
In an interesting case the plaintiff's case for malpractice against the physician was dismissed "with prejudice" but the suit against the hospital can proceed. For whatever reason the initial trial court ruling specifically let the physician off but not the employer. The employer, Augusta, then ruled for a dismissal since the case against the physician was dismissed on its merits there could be no case against the employer. A strange decision based on a strange set of facts.
Dalton v City Marietta
Ga Ct. App.
A neurosurgeon racing in his car to get to an emergency room to help a child had a minor accident. He left the scene and when he arrived at the ER, decided that the child needed immediate surgery. He told the hospital security people about the accident and the emergency. On his way to the OR he was detained by the police who refused to let him proceed. Another neurosurgeon was called and did the surgery. The child died. The family sued the city and the hospital after the original neurosurgeon testified that the child would have survived if he had been allowed to operate. The city and the hospital lost the summary judgment.
Filopovic v Dash
Ohio Ct. App
The patient sued the physician for med mal and the hospital for negligent credentialing. The trial court stated that the peer review statutes were unconstitutional. The appellate court reversed. The case was remanded for discovery minus the peer review information.
Druitt v Okada
Settlement
The plaintiff alleged that Drs. Donald Okada, an GYN, who operated on the decedent for a left ovarian cyst. He spilled cyst fluid in the abdomen and also needled fluid out of a right ovarian cyst again spilling fluid in the abdomen. The left ovary turned out of be cancer of low malignant potential. He omitted the surgery on the right ovary from his op report. She was sent to a cancer specialist who had no knowledge of the prior right ovarian fluid removal. The consultant, since he had no knowledge of the right ovarian puncture recommended either surgery with removal of the ovary and the uterus or waiting and following with sonography. There was no markers ordered by Dr. Okada. Six months later he did a simple hysterectomy and oopherectomy but no lymph node removal or pelvic washings. The pathologist, Dr. John O'Hara, was also sued for misreading the slides. The plaintiff's pathologist read the slides ad invasive mucinous adenocarcinoma. Dr. O'Hara also came to the OR but apparently did not want to do a frozen section on the ovary. The 43 year old mother of two died. The settlement was $910,000.
McCloud v Mt. Sinai
Ohio Ct. App.
The guardian of a child with CP sued the delivering physician and the hospital. The jury awarded $30 MILLION. The hospital appealed because the anesthesiologist was an independent contractor and not an employee. The Court stated that a hospital may be liable for an independent contractor if the hospital holds itself out as a provider of medical services and the patient did not come there because the physician sent her there. The Court stated that this was the case here and the hospital employee nursing staff and other employees were also involved. The court sent the case back to the trial court to consider reducing the verdict.
Martinez v UMASS Memorial
Mass. Super. Ct.
The plaintiff sued a physician and a resident who was working at the hospital during and for his residency. The resident stated he was immune since he was a public employee and immune from suit. The Court stated that there was significant control over the resident by the private hospital that a jury may find he was a hospital employee.
Hoofnel v Segal
KY Supreme Ct.
The patient signed a consent form fir colon surgery which was performed but also the physician took out the uterus and ovaries. The patient sued for battery. The consent form actually stated the the surgeon was going to remove part of the colon, the appendix and possibly the ovaries. The court stated that the signed consent topped the stated denial of permission. Top
Benson v St. Joseph
SD Texas
In a strange case, the physician sued for disparate peer review. The physician wanted about 1300 patient charts of his and multiple other physicians. He won! The court stated that the cost needed to be split but the physician was entitled to the charts to conduct a reasonable analysis to compare his peer review with that of other peer reviewed physicians.
Pastore v Samson
Rhode Island Supreme Court
The patient's estate sued the physicians and the hospital. They wanted during discovery the credentialing and privileging information of the two physicians. The Supreme Court stated that peer review privilege extends to information pertaining to possible deviations from appropriate standards of care which originated from the peer review committee. Therefore minutes of the meeting were privileged but the names of the physicians attending were not. The peer review privilege did not extend to physician rudeness, only to med mal problems.
Vesom v Atchison Hosp.
D. Kansas
Dr. Vesom had his privileges terminated. He sued and under discovery wanted the communications between the hospital and their attorney. Of course he didn't get them as all communications are protected and that protection was not removed by HCQIA. Top
Florida Hematology v Tummala
Fla. Ct. App.
Dr. Tummala worked for Florida Hematology and his contract had a restrictive covenant that stated for two years he could not practice within fifteen miles of any office. Dr. Tummala opened a competing office immediately within the fifteen miles. The Florida restrictive covenant states that the covenant is unenforceable unless it is for a legitimate business interest. It defines the patients as specific prospective or existing patients with whom the party has a substantial relationship. The court stated the practice could not prove any problem with exclusive contracts or future referrals since that is too nebulous.
California v Takasugi
Filed
California officials searched the home of Dr. Scott Takasugi of Carmichael, a plastic surgeon at Kaiser. The same day the doctor of 14 years at Kaiser was fired by the Permanente Medical Group. The physician has been charged with multiple gun charges and sexually assaulting and exploiting patients. His attorney stats that all his weapons are harmless and registered. The physician is a gun collector. Dr. Takasugi is out on $1 million bail. The Medical Board of California has suspended his license on the sex charges. The doctor has been accused of photographing the vagina of two patients, one who came in for a breast reduction and one who had a skin lesion removed from her clavicle. There were 40 complaints against him at Kaiser, some for the sexual and some for rudeness. The local sheriff's office had at least 15 complaints about the physician dating back 10 years. Of course, there is an ambulance chaser right in front. A civil law suit has been filed against the physician and Kaiser for negligent supervision of a physician and failure to protect and warn its patients.
Once the first case was filed, the vultures came out of the woodwork. There are now multiple cases filed as well as a class action. Kaiser also stated that the physician resigned "in lieu of termination for a medical disciplinary cause or reason." This is a reportable resignation to the Data Bank, if Kaiser does it. They usually don't report by using a loophole in the law in med mal cases. Kaiser is now stating that they gave the physician progressive discipline for his bedside manner. He was placed on a week unpaid suspension in December 2005 and was given coaching on patient treatment. He was warned that any further complaints would lead to termination. The above sexual complaints were the straw. Kaiser also states they have a policy that has a chaperone in a room when a male physician exams a female patient.
McCalla V SUNY
ED NY
A Black physician sued the hospital for discrimination as well as state law claims. The state law claims were dismissed but the discrimination claim stood and will go to trial.
Bachir v St. Agnus
ED Cal
Dr. Bachir was given provisional privileges at two hospitals but was denied staff privileges. He claimed it was due to his Syrian heritage. He lost and the attorney should have known better. He was an independent contractor and not an employee seeking employment. An independent contractor cannot sue for employment discrimination. Top
Patients v University of Alabama, Birmingham
To Be Filed
Long live those who favor EMRs. They will be a continuing source of fodder for this rag and for the courts. A computer with almost 10,000 names and information was stolen from the University. The University has offered one year of free credit monitoring for all whose names were on the computer. Top
Alabama v Scrushy
Guilty
Alabama did what a federal court could not, get a guilty verdict against HealthSouth founder Richard Scrushy. He was tried and found guilty of bribery by paying a half million dollars to former Governor Siegelman for a seat on a state health board. He could go to jail for 10 years. Top
US v Tenet
Settlement
Tenet and the government have settled all remaining charges for the grand total of $900 million. Tenet agreed to pay a bargain $725 million over four years and the right to go after $125 million in Medicare payments for past services. Most thought the fine would be over $1 billion. Tenet still in litigation with the SEC regarding its disclosures. They plan to sell off a bunch more hospitals to raise the money and to put in IT systems.
Oregon v Providence Health
Settlement
The judge found Providence's charity care and financial assistance was fair and reasonable. Then the judge gave approval to a settlement in a class action suit regarding Providence's charity care practices for past visits. The refunds will total about $200,000 and go to 250 people. 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.