June 1, 2003 Recent Legal News
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Sercye v Ravenswood Hospital
Settlement
Five years after he was shot and killed outside Ravenswood Hospital in Chicago, the surviving Sercye family has accepted a $12.5 million award. This is the infamous case where the boy was shot just outside the ED and the personnel would not treat him. This inspired the 200 yard rule of EMTALA. This also cost the hospital a $40,000 fine. Ravenswood was bought by Advocate the following year and has since closed the hospital. Advocate's insurance carrier paid the settlement.
Smith v Bostford General Hospital
Mich. Trial Ct.
In another EMTALA case the family of Smith sued the hospital for an inappropriate transfer without stabilization. Smith died in the ambulance. The problem was Smith weighed over 600 pounds and the hospital's OR tables could not hold him. This was a $5 million dollar jury verdict.
Mentor's Steris in Trouble
Allegheny General Hospital has blamed the Steris System 1 for the death of a patient and the infectious outbreak that injured another 15. The machine is used to disinfect bronchoscopes across the country. There are over 16,000 currently in use. There have been other outbreaks as well in New York and California. Steris states the outbreak in Allegheny was due to faulty medical equipment.
Smith v Price
Jury Verdict Cleveland Ohio
In a case that is hard to understand and should be frightening to all physicians a jury in an 6-2 verdict ruled that Dr. Price should pay the family of Smith $3.5 million. Why? The primary care physician had Smith as a patient for about five years. Smith was overweight, smoked and had a stressful job. The doctor counseled the patient about the risk factors and took an EKG which showed an abnormality but no acute changes. The patient died and the autopsy showed coronary artery disease as the cause of death. Smith had refused any medical treatment for his smoking or weight. The jury thought the internist still should have done more. I am at a loss to think of what that might be except to refer Smith to a cardiologist. This is a case where the patient had no accountability for his own medical problems. It was the physician's fault that he was overweight and wouldn't exercise, take prescriptions for help in weight reduction or diet. It was the physician's fault that he smoked and wouldn't accept prescriptions for help in quitting.
Hardi v Mezzanotte
DC Ct. Appeals
In a malpractice case the jury found for one defendant but could not reach a verdict on the second defendant. A second trial was held and the judge found for the plaintiff. Hardi appealed. The high court agreed with the plaintiff and ruled for the first time that collateral sources are not allowed as an offset against any award. The rationale is that since the plaintiff paid the premiums they are entitled to the benefit of the bargain.
Santillan v Duke University
Duke University created a fund of $4 million in the memory of Jessica Santillan, the transplant who received the wrong organs. The fund is for the help of other families of young Hispanic patients. This was done with the consent of Santillan's mother.
Bowman v Brooke Army Hospital
Dist Ct. Texas
Bowman, age 27 now, was misdiagnosed due to decisions and miscommunication at Brooke Army Medical Center and Northeast Methodist. She went to both hospitals and then suffered cardiac arrest after being discharged. She now has significant brain injury and is confined to bed. The jury awarded $16.6 million and stated Brooke was 30% Methodist 44% and the ED physician at Methodist 26% to blame.
DeWeese v Pennsylvania
Commonwealth Court
DeWeese, a Pennsylvania Democrat House member filed suit against the state to challenge the rule passed by the legislature that allowed joint and several liability. The court ruled against the state since the bill was a two issue bill which is not allowed under the rules. This case will be appealed but will almost certainly return the issue to the legislature to make it a single item bill.
US v Debbi, MD
NY Dist. Ct.
Dr. Devi was accused of and admitted that he did unnecessary eye surgery on the mentally ill of New York City. He billed for about 10,000 surgeries that were in the severely disturbed. He faces a sentence of loss of license, three years in prison and almost $1 million in restitution to the government.
Shamoun v Irvine Medical Center
CA Superior Ct.
In an unusual case the defense asked for a trial on damages prior to the liability. The physician, a microsurgeon was operating when a thirty pound lamp fell on his head. He ended up with fine tremors which thwarts his career. The jury awarded him $4 million for future economic loss, a backfire to the defense move. The liability phase now starts to determine how culpable the hospital and the maker of the lamp are. Top
US v HCA
Settlement
The government and HCA have settled for $631 million a whistleblower accusation that HCA overstated expenses, charged for ineligible items and paid doctors for referrals. This would raise the total paid by HCA to $1.7 billion for fraud settlements.
US
v Massenburg, MD
Filed W. Va. Court
This psychiatrist has been charged for signing about 1500 blank Medicaid and Medicare forms. These were then given to a counseling center. This will cost the physician a fine of close to $8 million. The woman who ran the counseling clinic have already pled guilty and been fined.
US v Westman
Plea
Dr. Herman Westman pled guilty of felony mail fraud. The penalty is exclusion from federal programs for 15 years and $1 million. He upcoded diagnostic nasal endoscopies, filed false claims for allergies testing that were not necessary and falsified medical records.
US
v Berkman, MD
Delaware
Dr. Robert Beckman, a Delaware Urologist, is facing criminal charges for billing for Zoladex samples. He is being charged with conspiracy with drug companies between 1994 to 1996. This was for 220 doses. He faces five years and a $250,000 fine. Top
Russo
v Nagel
N.J. Superior Ct.
Nagel, a mass tort attorney, filed four malpractice suits against Dr. Russo in connection with laser eye surgery. The shyster then began advertising in newspapers for more patients. During settlement Nagel allegedly wanted $3 million to settle the four suits and threatened to go to the media if this was not paid. Nagel was sued by Russo for defamation, extortion and tortious interference. The court dismissed the action and this appeal ensued. The Superior Ct. affirmed and stated that bad result does not mean malpractice. There was nothing in the advertisement that stated Russo was incompetent and all statements in negotiations were privileged. If anyone wants to read about this kind of dirty tricks, I recommend Grisham's new book, The King of Torts. Top
Quini v Paradise Valley Hosp.
CA Ct. App.
A patient died from blood loss following a liver biopsy by Dr. Quini. His privileges were suspended and a full judicial review hearing occurred. The judicial review concluded the termination was correct. Dr. Quini then asked for reinstatement of privileges and this was denied. Again he asked for and received a JRC hearing. Again, the JRC ruled against the physician. The JRC also stated that since he did not timely ask for the hearing his staff membership was terminated. The decision was upheld by the Board. The case was complicated by Quini delaying the hearings for family matters and the hospital medical staff not believing him. The doctor asked for a writ of mandamus and the trial court ruled for the hospital. The doctor then appealed. The Court of Appeal again went against the doctor stating the hospital had ample support for it's decision. Top
EMTALA
Dollard v Allen
Wy. Supreme Ct.
A hospital inpatient became ill after being discharged from the hospital. She sued the hospital under EMTALA. The hospital defended by stating the patient had never come to the emergency room. She was a routine admission and therefore did not fall under EMTALA. The court ruled that the patient does not have to come to the ED to fall under EMTALA but the patient can claim the hospital did not stabilize them prior to transfer. Here, the court ruled that the hospital never determined the patient had an emergency medical condition that need stabilization and stabilization did not apply to patients who are admitted as inpatients. Top
Patel v Wyandotte Hospital
Mich. Ct. App.
Patel was employed by Wyandotte and was terminated following a patient complaint of inappropriate breast and pelvic exams. The hospital investigated and found there was a pattern of not clinically indicated exams and failed to have a chaperone despite a previous warning regarding same. The physician filed suit stating he was discharged for religious and national origin reasons. The trial court ruled for the physician. The appeals court ruled there was sufficient evidence for the trial court's decision. The Director of the ED stated Indian doctors were lazy and a psychiatrist stated on his fitness report that the Indian background was consistent with someone who may have sexual conflicts. The court went on to overturn the decision due to the trial court's withholding of the hospital's evidence of inappropriate behavior was mistaken. The trial court had stated the physician patient privilege applied but the appeals court stated that the evidence did not identify any patient so was not protected. New trial. Top
ACLU v Los Angeles County
Fed. Dist. Ct.
A district court judge issued an order to prevent LA County to reduce the number of beds by 100 at the County-USC Medical Center. The judge also refused to allow the county to close the rehab hospital Rancho Los Amigos in Downey. The county was attempting to save $75 million the first year by the bed closure. The system is broke and this means the money will need to come from other programs.
As a part of the contemplated closures the LA County Board is planning to close the inpatient facility at High Desert Hospital in Lancaster California. The Antelope Valley hospital Board is threatening to sue the County over the move. If the High Desert Hospital closes the remaining hospitals would be stuck with the uninsured and would need to treat them for free. This would decrease the hospitals bottom line necessitating layoffs and reducing beds due to the new nursing ratios that are due into effect soon. Top
Townsend v Quasim
The ninth Circuit ruled that Washington State's refusal
to do community based in home nursing for some disabled was against the
Americans with Disabilities Act (ADA). The only reason not to do it legitimately
would be if it fundamentally altered the nature of the services offered by the
state. The state must deliver government services in the most integrated
setting possible. Top
Jacobs v Grosmont Hospital Hospitals
that utilize psychiatric involuntary holds for patients tat are a potential
danger to themselves or others do not enjoy complete immunity for negligence
claims independent of the involuntary hold. The case involved a person on
an involuntary hold who fell and broke her leg. She sued for negligent
supervision. The hospital only has immunity for the decision to hold
only. Top
Medical Staff v Community
Memorial Hospital
Ca Ct App
Ca Trial Ct.
The judge denied an injunction wanted by the medical
staff against their hospital. The issues were the confiscation of $250,000
of medical staff funds, the refusal to seat an elected chief of staff, and loss
of privileges without a hearing. The judge thought there was no irreparable
harm to require a restraining order but will hear the full case at a later
date. The physician lost his privileges because he refused to sign a
statement regarding a potential financial conflict of interest. This is
the core of the dispute between the hospital and the staff. The judge
stated the physician should sue individually and not with the medical
staff. The problem began when the medical staff ran a slate against the
hand picked hospital officers of the medical staff. The doctor's slate won
and the Board put in multiple new rules regarding financial conflicts which the
new officers refused to sign. The hospital had chose a new radiology group
for the hospital which the medical staff doesn't feel gives the same quality of
care as the ousted group. The hospital states that the Board runs the
hospital and the medical staff only is an advisory body. This flies in the
face of the JCAHO and state rulings of an independent medical
staff. Top
CD v City of New York For
the first time in New York a judge has decided that a parent has the right to
stop life support for a child in a persistent vegetative state without asking
the court for permission. New York is behind most other states in this
regard due to the legislature failing to pass a bill regarding this for the past
ten years. In this case AB, the child, in a PVS following a seizure and
with no hope of recovery, was being kept alive by artificial means. The
mother, CD, wanted to stop the procedures. The New York Department of
Health would not allow the mother to make the decision, leading to the
case. Following the case, the child was taken off the respirator and
died. The only caveat in the case is that a parent must have no financial
interest in the death of the child. Top
California v Blue Shield A
judge ruled that under SB 842 HMOs must pay for medications that are required by the Dept. of
Managed Care. This particular case involved an obese woman who was
prescribed Xenical and was turned down by Blue Shield HMO for payment of the
medication. Prior Dept. Chief Zingale stated that the HMOs should not look
at the drug per se but at the patient and the reason that drug was prescribed
for that patient. An allergy drug may not be necessary for all patients
but with an asthmatic it may be
necessary.
Blue Shield is disputing the
decision since they have already signed contracts for 2003 for their
formulary. They contend the Department does not have the right to make
the HMO change existing contracts.
Top
US Supreme Court Decision The
US Supreme Court ruled that Maine can use it's buying power to force lower
prices from the pharmaceutical industry. The problem with the Maine
program is that there are no income ceilings or other criteria of financial need
in the program. The Feds may reign in the overbroad program and limit it
to the uninsured or the Medicaid program. This will probably end up in
court again over the broadness of the proposed
program. Top
Settlement Aetna
has agreed to settle with the physicians suing the insurer for illegal bundling
and other underhanded methods. Aetna will pay $100 million to the
physicians, $20 million for a foundation for improving health care and $50
million to the attorneys for the physicians. This settlement has been approved by Judge Moreno. He has not ruled as yet on Cigna's attempted
settlement from last year. This give each physician about $150 and
you can see the amount for the attorneys. Aetna also agreed to cut out
their nonsense of delayed payments and un-necessary delays of clean
claims. Top Lustgarten,
MD v Med. Bd. North Carolina Dr.
Lustgarten testified for the plaintiff in a malpractice case against two
physicians. The case settled but one of the physicians filed a
complaint against Dr. Lustgarten with the Medical Board. The Board
believed that Dr. Lustgarten misstated the standard of care in North
Carolina and revoked his license. The license was inactive in North Carolina.
Lustgarten sued the Board for lack of ability under the law to discipline
him. The judge agreed stating the law was too vague and therefore
unconstitutional. The judge sent back to the Board one aspect of the
case, whether Dr. Lustgarten statement that one physician falsified
documents, an unprotected statement, was valid. A separate hearing
will be held on this later this
year. Top Pachowitz
v LeDoux The
plaintiff sued because a paramedic told one person about an overdose.
The one person told many of the plaintiffs co-workers. The trial court
ruled in favor of the plaintiff and awarded $3000, and attorney fees of
$30,000 plus court costs. The court of appeals
agreed. 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.
NY Supreme Ct.
CA Superior Ct.
NC Superior Ct.
WI Ct. App.