July 15, 2014 Recent Legal News








Peer Review and Employment


Burwell v Hobby Lobby
US Supreme Court

The Supreme Court has decided that closely held businesses whose five or less owners do not believe in abortion can legally not be forced to pay for four contraception devices in employee sponsored health plans under Obamacare.  States may pass their own laws regarding the matter.  

The Court also said that workers who are quasi-public (salaries paid by Medicaid) do not have to pay union dues if they do not want to.  This is the first step to get rid of public employee unions.

Consumer Watchdog v Blue Cross

Consumer Watchdog filed a suit against Blue Cross for lying to the public as to the types of insurance they were offering and the providers under contract to give services under Obamacare.

?? v Massachusetts
D Mass

The People's Republic of Massachusetts has a lot of money for court.  They continue to pass laws to impede the use of Zohydro.  The courts keep shooting them down.  The latest is to have the prescribing physician attest they have tried all else and have failed before prescribing Zohydro.  

House of Representatives v Obama
To Be Filed

The US House is getting it's ducks in a row to file a precedent breaking law suit against the president for his abuse of the executive orders.  They have decided to focus on one order to delay the imposing penalties on employers who do not offer health insurance to employees in compliance with Obamacare.  They have left the other usurping of powers behind.  The suit is challenging the right to change legislation without congressional approval not the right to issue executive orders.        Top


Kuhfuss v John C. Lincoln Hospital
Arizona Supreme Court

Two cases came before the court wanting to sue hospitals under the Adult Protective Services Act of the state.  The hospitals wanted to restrict the law to nursing homes and similar facilities.  The Court said there was nothing in the law to warrant the restriction.  The case came after the lower courts dismissed the suits of two individuals for elder abuse.  This may mean increased payments for pain and suffering.

St. Luke's Hospital v Miller
Pennsylvania Court of Appeal

In a suit that can only be described as very stupid, St. Luke's Hospital sued two families that sued it for malpractice.  The sued under something called the Dragenetti Act, a law in Pennsylvania that allows the defendant to sue if they believe the original suit was not in good faith.  The hospital won the original suit for malpractice and lost the suit in state court and the court of appeals in the Dragenetti suit.  The families then re-sued the hospital for suing them under the same law.  The families won but without any financial award.  This litigious hospital also sued several attorneys for suing the hospital and lost all.  

New York v D'Alessandro

Beth Israel's former pharmacy director Anthony D'Alessandro was arrested at his home for theft of $5.6 million in oxycodone pills from the pharmacy.  It is as yet unknown what he did with them but it is doubtful that he took all 200,000 puills.

Patients v Pacific Hospital of Long Beach

In an unreal story it is alleged that a machine shop person made multiple back screws for a company called Spinal Solutions.  Spinal Solutions then sold the fake screws to the hospital.  The hospital paid kickbacks to physicians to operate at the hospital and implant the fake screws into patients.  The hospital then charged worker comp for the full price of medical grade screws.  The difference is a $300 cost versus billed at $12,000 each.  The hospital paid physicians $15,000 to do their surgery there.  The CEO also paid allegedly State Senator Ronald Caldreron to protect a law allowing hospitals to be paid the full cost of the screws.        Top


US v Kahn

Dr. Walayat Kahn of Ypsilanti, Michigan pled guilty of fraud.  He used recruiters to get Medicare patients into his practice so he could refer them to a bogus home health agency.  he would then get kickbacks for the referrals and his attesting to their need for home health care which they did not need.

Kane v Healthfirst

Kane was fired one month after he sent a report to the company stating their were over 900 misfiled reports to Medicaid.  The company repaid about 300 of them and after two years paid no more.  The state of New York filed against the company.  The case should be settled soon.

US v Carthage Area Hospital

The hospital has agreed to pay $750,000 for overpayments to it for double billing.  The hospital had recognized its mistake and therefore paid no premium over the actual amout.

US v Rushing

Tanya Rushing, the COO of the Las Vegas Endoscopy Center of Southern Nevada, pled guilty of conspiring with Dr. Desai to overcharging and inflating anesthesia charges to federal and private insurers.  Dr. Desai is now undergoing exams to see if he is competent of standing trial.

New York v Karcher

Dr. Cheryl Karcher, a celebrity dermatologist, was arrested for allegedly forging prescriptions for Percocets and Klonopin using patient names but for herself.  She pled not guilty and was released without bail.        Top


Colorado Medical Board v Office of Administrative Courts
Colorado Supreme Court

The state high court ruled that the information in the medical board's review records are peer review protected.  Dr. Polly Train had her license disciplined and sued in administrative court.  She wanted the records of board reviews of similar situated physicians.  The lower court agreed since they believed the law only applied to civil and not administrative suits.  The supreme court said the records are protected from all forms of subpoena and discovery.  They also said the administrative hearing is a civil suit under the peer review statute.        Top


Mayo v Jaffe
Milwaukee State Court

In a case heading to the Wisconsin Supreme Court the jury gave the plaintiff, a 52 year old mother $53 million after she became a quad amputee due to a Strep infection.  The jury found the physician 65% at fault and the physician assistant 355 at fault not for negligence but for failure of providing alternative diagnosis that could have led to a different outcome.  The interesting part of the case is a Wisconsin law that was not in effect when the incident occurred.  It would have lowered the bar for what a physician needs to tell a patient for informed consent.   The old law required the physician to tell a patient treatment options that a reasonable patient would want to know.  The new law requires a physician to tell the patient what a reasonable physician would tell a patient.  In this case the economic damages were $8 million.  The cap for non economic damages is $750,000 and she was awarded $15 million.  The cap for loss of consortium is the same and he was awarded $1.5 million.  The appeal will be for the caps to be overturned.

Ellis v Clarke
Massachusetts State Court

The patient had a cough and after it did not get better a chest x-ray was ordered.  The radiologist, Clarke, read it as normal.  A year later a CT showed a large lung cancer and it metastasized all over.  The patient died.  The daughter sued and the jury said malpractice.  They awarded $16 million.  I do not know whether it is med mal or not.  If the cancer was overlooked in the initial x-ray, whether or not clinical information of a 30 pack year cigarette history was given, it may be med mal.  However, the amount is ridiculous, even for Massachusetts.  The question of whether the end was inevitable when the first x-ray was taken needs to be explored.  Even if it was not inevitable the amount is way out of line.  

Goldenberg v Woodard
Nevada Supreme Court

The patient sued the idiot physician for fraud and medical malpractice.  The idiot took a whole one weekend course in colonoscopy and decided he could do it.  He was refused hospital privileges for the procedure but was erroneously granted privileges for it at an ambulatory care center but proctored.  He did the patient and did not wait for his proctor.  He perforated the colon and did not recognize it.  He did not tell the patient that he had never done one before.  The jury found the physician and the surgery center were both guilty of fraud and negligence.  They awarded the plaintiff $610,000 in economic damages and $1 million is non-economic damages.  The determined the physician was 40% guilty and that 20% was due to fraud and the rest negligence.  The state supreme court stated that fraud was appropriate and there is not a cap on that amount.  The cap on the negligence was for the whole case and not individually per defendant.          Top


Physicians v Blue Shield
To Be Filed

Blue Shield screwed up.  They gave 18,000 physician's names and social security numbers to the Dept. of Managed Care in California.  The Dept. in turn released them to those requesting information under the law.  Blue Shield is offering one year protection for those involved.        Top


In Re Managed Care

Several years ago there was a class action law suit against the insurers including Wellpoint for their lying and illegally reducing money due the physicians.  A settlement was reached at that time.  However, some physicians and medical associations opted out of the settlement and continued to sue Wellpoint.  The circuit court ruled that (1) they should have been held in contempt for not withdrawing their complaints under racketeering and (2) allowed the complaints to go forward under ERISA for the continuing underpayments after the settlement.  This was a 2-1 decision with the third judge wanting to let all claims to forward.

Emigh v West Calcasieu Cameron Hospital
Louisiana Supreme Court

 The insured filed a class action suit against the hospital and Blue Cross Blue Shield for not living up to their end of the contract.  The hospital had contracted with the Blues and the patient was insured by the Blues.  The hospital refused to accept the reduced payment and charged the full uninsured rate.  The case revolved around the ability to sue the Blues for the problem with their hospital.  The court stated that they could be sued but did not talk about the merits of the case.

United Health v California

United Health was fined by the state for a botched 2005 acquisition of PacificCare.  The state initially fined the insurer $10 Billion which was reduced by an administrative law judge to $11.5 million.  The state now has rejected that decision and ordered United to pay $173.8 million by the end of the month.  United has filed suit to block the attempt to get the money.  This is political as the person wanting the fine is running for office this fall an there is a ballot measure to allow the insurance commissioner the authority to reject health insurance rate increases that he deems unreasonable.        Top

Peer Review and Employment

Hamdan v Indiana University Health Network
SD Ind

The surgeon sued the hospital after he was terminated.  His cause was discrimination and he wanted emails from the hospital.  The hospital refused because they claimed they were attorney client privileged or under the work product rule.  The court said that some of the emails can be obtained since just copying an attorney does not protect them.

Green v Springfield Med Ctr. 
D Vt

A nurse anesthetist sued the hospital after he was terminated.  His cause was retaliation for whistle blowing.  He had reported several people over a two year period for improper patient care.  During the past two years the hospital had declining patient volume and that is the reason they claim he was terminated.  The court said that the summary judgment motions were inappropriate and the case goes to the jury.

Haight v NYU Langone Med Ctr.

In another case of stupid lawyering by a hospital, a former nurse was fired after a long bout of sexual harassment condoned by the hospital.  She was a very religious person and a co-worker harassed her.  She made numerous complaints to HR and eventually the co-worker was fired.  The co-worker was hired by another organization who put her immediately back in the hospital and in direct contact with the nurse.  The nurse got PTSD and had no accommodation.  Bad hospital nurse relations and lawyers.  To trial.

Hyshaw v Saint Francis Med. Ctr. Medical Executive Committee
Ca Ct App

A neurosurgeon had problems at the hospital and was given a choice of a leave of absence or suspension.  He chose the leave.  When he attempted to come back he was refused and had a judicial review hearing and lost.  He appealed to the hospital board as per the bylaws but did not file the appeal in a timely manner.  The board therefore agreed with the medical executive committee and he was excluded.  He sued and the court and the court of appeal denied the case since he had not exhausted all his appeals.  He did not file his brief with the hospital board so the claim was barred.  Either a dumb doc or a dumb attorney or both.        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.