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CHW has settled the claim by the Feds that Mercy Sacramento inflated MediCal and Medicare claims. The cost was $10.25 million. This was a whistleblower (Qui Tam) suit. The whistleblower will receive $2 million. Top
In a Nevada Supreme Court ruling an ED physician was fired appropriately after a patient she had examined died on the hospital grounds two hours after being seen and released. The physician claimed she was fired due to the hospital's fear of a federal investigation and not due to her treatment of the deceased. The head of the ED stated that the physician treated the patient for about seven minutes and gave him no instructions. I have no idea regarding the real nature of this case but it doesn't matter how long someone treated a patient or whether or not they gave them instructions when they die suddenly.
Gabaldoni v Washington County Hosp.
4th Circ
A physician was denied reappointment to a hospital by the Board even though several committees recommended reappointment. The physician sued and lost at both the District and Circuit Court levels. The Courts ruled the Board does not have to listen to the committees but only have enough evidence that the physician's deviation from hospital standards of care and policy that the Board could reasonably believe it was furthering the quality of health care at the hospital. The Board does not have to independently investigate all the facts, only that a reasonable effort be made to ascertain the facts.
Freilich v Upper Cheasapeake
D Md
A physician was not reappointed to the hospital staff and sued the Board claiming her constitutional rights were violated. This is a novel argument but of course failed. She claimed that HCQIA violated her Fifth Amendment due process and equal protection and the Tenth Amendment by regulating a traditional State function. The Court ruled that Congress under the interstate commerce clause can validly rule in the Tenth Amendment case and that the Fifth Does not apply since the private action of a hospital under a Federal law does not invoke a federal question. Top
Ballinas v Lincoln Hospital
A New York jury found a hospital guilty of malpractice for the brain injury to a newborn. Following the birth the mother was found to have group B strep, a etiology for newborn meningitis. The test was ordered a day late and there was another delay in the reporting of the result and still another day delay prior to starting antibiotics. The jury awarded $107 million for the negligence. This shows if you have a protocol, you must follow the protocol.
Allen v Torrance Memorial
LA Superior Ct.
A two month old was admitted for respiratory problems. An IV was placed in his right foot. The IV infiltrated and caused a chemical burn around the site. The problem was discovered within thirty minutes of the start of the IV. There was no permanent damage and no surgery was required to repair the foot. The plaintiff originally demanded $110,000 for the injury. This was later reduced to $30,000. The defendant offered $10,000. All were rejected. There was a jury trial that lasted 5 days and the verdict of no negligence came after deliberations of 1.5 hours. This is a case of an attorney looking for a quick settlement and getting stuck. It costs about $50,000 to $75,000 to bring a case to and through trial. He should have realized he had no case and never taken it in the first place. When he reduced his settlement he knew or should have known he would lose but ego is a strong motivator.
Vicarious Liability
Powell v Fuentes
La. Ct. App.
The plaintiff sued the hospital for the negligence of the ED physician, an independent contractor. The trial court under summary judgment ruled for the hospital. The Court of Appeal reversed stating that the hospital bylaws had questions as to whether the hospital had the right to control the manner and method in which ED physicians rendered services and therefore might be liable to the actions. A trial on the issues is indicated. Smart attorney to look at the bylaws. Dumb hospital to not look at the bylaws.
Jennison v Providence St. Vincent
Oregon Ct. App.
The plaintiff presented with abdominal pain and was worked up with no obvious cause of the pain found. The patient underwent a laproscopic examination following the insertion of a CVP line. A tubal mass was found and removed. In the PACU a X-ray was taken to determine the correct placement of the CVP line. The patient continued to complain of pain and was given more pain meds. The patient had two episodes of cardiac arrest leaving her brain compromised. The X-ray showed the CVP catheter in the wrong position. It had perforated the heart and ended in the pericardial sac making a tamponade which caused the cardiac arrests. The hospital had a nursing protocol for taking X-rays as soon as feasible after insertion of the CVP catheter but no protocol of when the X-ray was to be read nor whom the independent contractor radiologist was to call, if anybody. The court found the lack of sufficient protocols to be negligent on the part of the hospital. It also found that what is required for an agency relationship is that if the patient reasonably believed that the radiologists were employed by the hospital the hospital is liable for the negligence of the radiologists. The jury came back with a multimillion dollar verdict for the plaintiffs and all against the hospital. The Court of Appeal affirmed on the above grounds of lack of sufficient protocol and apparent agency. These cases again show that the hospital based physicians are almost always considered hospital employees even if they are independent contractors. Also the latter case shows if a hospital has a policy on an area it must go to conclusion for that policy.
U. of Miami v Spunberg, MD
Fla. App.
Two radiation oncologists lost their exclusive contracts with the university and their staff privileges. They sued for breach of bylaws and tortious interference with business relationships. An injunction against the hospital was issued forbidding the removal of the physicians until the trial since the hospital admitted it had not followed its own bylaws. Following a four week trial the jury awarded the physicians $15 million in compensatory and punitive damages. The Court of Appeal overturned the verdict and ordered a new trial since the lower court erred in excluding a letter sent from the hospital to the physicians after the injunction offering them the opportunity to reapply for privileges. Top
South Texas Medical Clinic v Teen
Texas App.
A gastroenterologist signed a covenant not to compete with a clinic that stated he would not provide physician services " at any medical office, clinic or outpatient and/or ambulatory treatment or diagnostic facility within a thirty mile radius of the clinic." He took a position at a hospital within the thirty mile radius. The clinic sued and lost since a hospital is not one of the things named. Top
Luftti, MD v Brighton Comm. Hospital
Colo. App. Ct.
An ED physician had a contract with a corporation that contracted with the hospital. The hospital CEO asked that the physician be removed from the ED list after a patient complaint of rudeness and refusal to provide treatment. The physician was removed and sued the hospital and the CEO alleging racial discrimination under Title VII of the Civil rights Act of 1964 among other alleged wrongs. The trial court ruled in summary judgment for the hospital since the physician was an independent contractor and not an employee. The Court of Appeal agreed since there must be an employer-employee relationship to assert a claim under Title VII.
Borngesser v Jersey Shore Medical
NJ Superior Ct.
The plaintiff sued and lost in trial court in an action filed under the Federal Rehabilitation Act for not providing effective communication to the deaf plaintiff. The appellate court ordered a new trial since while it is up to the hospital what measures need be taken to ensure effective communication, the effectiveness of the measures must be viewed from the perspective of the patient.
Bogart v NYC Health and Hospital
SD NY
A long time director of Radiology sued for age discrimination when two hospitals combined and he was not offered the new position of Director of Radiology and was fired prior to the merger. The hospital stated he was offered the position but demanded to high a salary. The Court stated that the physician had met his burden of establishing a prima facie case for age discrimination and the hospital did not meet its burden of stating a non-discriminatory reason for his firing. In deposition there was no documentary evidence of the high salary demand. The case may proceed to trial. Top
US V Sutherland
WD Va.
A physician was prosecuted for unlawful distribution and dispensing of controlled substances. The government issued a subpoena to compel production of pharmacy records from the hospital of certain patients who filled prescriptions written by the physician. The hospital refused and filed a motion to quash since it would be giving privileged and confidential patient information. The magistrate refused the motion to quash and the district court affirmed. However, the district court required the government to comply with HIPAA pertaining to disclosures for judicial and administrative proceedings by giving written notice to each patient whose record was subpoenaed and give them an opportunity to object. Top
Adjan v Summa Health
Akron Superior Ct.
In an interesting case in Akron, Ohio a physician was deselected from a managed care organization for economic reasons. Adjan's profile was more expensive than benchmarks in inpatients, emergency room visits and specialist referrals. Under Ohio state law the insurer is supposed to develop a plan "in conjunction with the participating provider" for practice improvement. This did not occur and Adjan was terminated for not signing the plan. Upon termination Adjan did not receive the withhold money due him. The Court stated that Summa was wrong in not returning the money and for not allowing the participation in the plan. Another hearing will be held to determine how much Summa owes Adjan for the withhold. Adjan is a past chief of staff for a local hospital and has since retired. The spin by the two attorneys is interesting. The attorney for Adjan stated that this is a case over Summa not paying what is owed and the judge agreed by stating in her 46-page opinion that the "motive for terminating Dr. Adjan was financial self-interest and not in the interest of the enrollees with whom he had established a beneficial physician-patient relationship." The Summa attorneys stated that all Summa did was "in the interest of enrollees." Adjan asked for punitive damages but this was denied since Summa did not act with malice. Position entrenchment usually fostered by attorneys that are paid by the hour cost a lot of money. The trial and costs pre-trial and the costs of the next hearing will add up to many times more than the doctor would have been paid, or possibly if they would have paid all the physicians. The bad publicity generated for the managed care organization both locally and throughout the country is horrendous. Top
An Air Force physician was found guilty for refusing a direct order when he would not allow the unproven and possibly dangerous Anthrax vaccine to be given. The panel did not state whether the vaccine was safe only that the physician refused an order. There was no defense since the judge would not allow any evidence regarding the safety of the vaccine. The penalty to be decided can include five years in prison, dismissal and total forfeiture of pay and allowances. The physician and another officer have filed suit against the FDA and Defense Dept. seeking the end to the program I would have also refused the order. Top
Johnson & Johnson has agreed to pay $60 million to settle law suits from 12 states attorneys for illegal tying. J & J would only sell replacement contact lenses to eye professionals or certain specialty retailers. This made it hard for consumers to purchase from mail order suppliers. Top
Edgewater Hospital in Chicago has been slapped by the Feds for illegal kickbacks. The named parties are the Management Company, Medical Director, a Senior Vice-President and two physicians. The claim is they billed for unnecessary hospital visits and tests for services to homeless who were promised a place to eat and sleep. Also they are charged with racketeering and mail fraud. You will see a quick resolution to this case with everyone blaming everyone else and big fines for all. I would not be surprised to see all banned from Medicare and Medicaid. The use of the homeless reminds me of when the dead people of Chicago elected Kennedy President. Top
Approximately 22 years ago a dispute began in the issue of whether or not prenatal care Medicaid is constitutional for illegal alien mothers. In the 2nd Circuit a District Court judge said the Congressional ban on prenatal care was illegal. That has been overturned and now federally funded prenatal care for undocumented aliens is no longer legal. The Court threw out the challenge on behalf of the pregnant illegal alien mother and a second plaintiff the unborn child. All agree that from the moment of birth the child is a citizen and entitled to automatic Medicaid eligibility. Top
IPA v HMO
Hill Physicians v PacifiCare
ND Ca
Hill Physicians, the largest IPA in Northern California sued PacifiCare for breach of contract and the other usual cause for non-payment. The HMO tried to remove the case to Federal Court but the District threw it back to State court since it had no bearing on ERISA nor plan members. Top
The psychiatrist who took $71,000 for his medical training in return for service in the armed forces must pay back the money. A District Court stated that he knew when he took the money that he was gay and would not need to serve. He came out just as he was to go into the service and then claimed he did not owe the money since he was willing to serve but was rejected by the armed services because of his sexual orientation. Top
HealthSouth has agreed to pay the government $ 7.9 million
for alleged fraudulent overbilling for rental payments and the cost of an
abandoned computer system.
Shields Health Care Group agreed to pay $600,000 for stating they did MRI when
in fact they did MRA examinations, a non covered Medicare service.
It looks like the fine for TAP for the Lupron fiasco will be at least the previously reported $840 million. Top
Schuster v Blue Cross
In a case that goes to trial next week a woman recovering from a triple organ transplant is suing her insurer, Blue Cross/Shield for paying the costs too late. The insurers paid all claims but delayed because they believed the forms were filled out incorrectly. They paid late causing the patient to pay interest charges. If the patient wins this part of the case there will be another suit for punitive damages. Top
HMOs Sued for denial of Proton Beam therapy for Prostate
Cancer Victims for Quality Healthcare, a nonprofit group, has sued PacifiCare, Health Net, Kaiser, Blue shield, and Cigna for denying proton beam therapy in the treatment of prostate cancer. The plaintiffs are seeking class action. The HMOs claim it is experimental and is a non-covered service. The suit seeks legal fees and restitution for those patients who have paid out of pocket for the treatment. Blue Cross and Aetna has paid for the treatment for the past three years. 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.