June 1, 2004 Recent Legal News

Nursing

California Healthcare Assn v Calif. Nurses Assn.
Superior Court

A judge in Sacramento, California backed the Nurses Union in their contention that the nurse patient ratio law held on times of breaks.  The patients assigned to the covering nurses could not be more than the ratio allowed otherwise it would emasculate the law.          Top

Employment

Schalk v Associated Anesthesia
D. Maryland

Schalk sued under the ADA for being denied employment based on the history of drug abuse.  Past abuse is covered under the ADA but current drug use is not.  The group defended by stating that the law didn't cover Schalk since he was not an employee nor a job applicant.  The Court refused to grant summary judgment for the group stating that the physician's status relates to the merits of the case and therefore is a proper trial decision. 

Tomasini v Mt. Sinai of Florida
SD Florida

Tomasini sued the hospital for severance pay under his contract as chief medical officer.  The hospital originally terminated him due to a change of administration and for "as other than for cause".  Afterwards, further investigation showed potential cause which would relieve the hospital of paying the severance pay.  The court said that the hospital had made the decision in it's contract not to allow it to investigate post-termination and therefore can not do it.  Pay the doctor. 

Murphy, Norwood v duPont Hospital
Filed

A cardiologist, Murphy, and a cardiac surgeon, Norwood, have filed suit against the hospital in Delaware and its parent Nemours for defamation.  The two were fired without a hearing.  They were accused of using an experimental device on children with congenital heart disease without proper FDA approval.  The physicians state that the hospital knew about the research since it was quoted in their annual reports in 2002 and 2003.  Murphy was cleared of licensure problems in this case on April 7, 2004.  The Department of Health, the agency that originally contacted the Board, has filed a new report against Dr. Murphy. 

Fotia v Palmetto Behavioral Health
DSC

Fotia was allegedly told to transfer a patient to another facility in violation of EMTALA because the Palmetto unit had already taken their share of unfunded patients.  Fotia refused and turned the Unit in to the Feds and was fired.  Fotia sued for retaliation and the Unit defended on the EMTALA law.  The court stated that EMTALA does not prohibit and allows a suit for retaliation if the person whistleblowers the Unit. 

Rodel v Anesthesia Grp of Onondaga
2nd Circ

A disabled anesthesiologist filed suit against his group under the ADA for damages in failing to accommodate his disability.  He wanted no night or weekend call.  The group said no.  The district court sided with the group since the call was an essential part of the position and if accommodated it would be a major hardship on the group.  The 2nd Circuit did not see it exactly the same.  The evidence if viewed in a light most favorable to the physician, as is usual in a summary judgment case, did not allow the lower court to conclude that the doctor failed to seek an accommodation or it would have relieved him of essential job functions or even if the request was reasonable did it pose a undue burden on the group.  Therefore back to trial court.

Kessel v Monongalia Hosp
   W. Va. Supreme Ct.

The public hospital gave an exclusive contract to a group of anesthesiologists.  The current group sued.  The Supreme Court said public or quasi-public hospitals could not have exclusive contracts that prohibit others with privileges from using the facilities.  The exclusivity would have to modified if a patient asked for another physician with privileges to perform the service.

Qayyum v Morehouse Hosp
La. Ct. App.

The physician ran a clinic at the hospital. Three years after a  one year contract had run the doctor sued for an accounting.  The hospital said the statute of limitations was three years for a claim of compensation.  The lower court agreed.  The Appeals court said that the statute was ten years for an action for accounting of money.          Top

License

State of Oregon v Ashcroft
9th Circ.

The 9th Circuit ruled that the Attorney General does not have the power to criminalize physician assisted suicide.  The Attorney General's directive is illegal as it is against the Controlled Substance Act.

Anderson v Dept. of Prof. Reg.
Illinois App. Ct.

Anderson operated on the wrong side in a hernia.  He was accused of gross negligence and dishonorable, unethical or unprofessional behavior.  The standard of care is to operate on the correct side and he was justified is relying on documents prepared by others nor on a memory of a H and P done by him a month prior.  The court stated the Board was not clearly erroneous in its determination.        Top

Criminal

US v Watts, MD
Indicted

Dr. Watts and two others were indicted by a Memphis Grand Jury for Medicare fraud.  he was accused of filing phony claims totaling over $7 million.        

Raich v US
Order

A federal judge, following the order of the 9th Circuit, issued a preliminary injunction against the United States for pursuing a drug case against Raich, Monson and two others for the use of medical marijuana.  The government is set to challenge the ruling in the Supreme Court.  The argument is that since medical marijuana is legal in California and that no interstate interest is raised, the government has no legal right to intervene. 

California v Barnbaum
Sentenced

Mr. Barnbaum, age 70, has been arrested many times for impersonation of a physician.  This time he was working in a Family Medical Clinic in Los Angeles for one month.  He has been sentenced to 10 years in prison.        Top

Physicians v HMO

North Carolina Physicians v UnitedHealth
Filed

About 12,000 physicians in the state have sued UnitedHealth for unfair and deceptive business practices to delay and deny claims.  The suit does not ask for damages but for a change in the business practices.  I do not understand why damages have not been asked for as was received in settlements in the consolidated case in Florida, along with the requested business practice changes.        Top

Malpractice

Newell v Trident Med. Ctr.
SC Supreme Ct.

Newell was injured during gall bladder surgery by a physician who underwent elective coronary by-pass surgery three days after he operated on her.  The surgeon did not tell her about his upcoming surgery and neither did the hospital.  The hospital knew about the surgery and should have told her, the patient claimed.  Wrong, sayeth the court.  The duty of informed consent is strictly between the physician and the patient.  The hospital is only liable in apparent agency situations and this did not qualify.  

Covenant Care v Superior Court
Cal. Supreme Ct.

The California Supreme Court ruled that if Elder Abuse is alleged in malpractice actions that punitive damages may be received.  This may impact on MICRA, but may not.  In elder abuse cases the plaintiff must prove malice, fraud, oppression, or recklessness to make a claim.  All require extreme or despicable behavior, which is not present is almost all malpractice cases.  Also the ruling was restricted to custodial and not medical care.  Physicians almost never give custodial care.  The problem is the pressure on the physicians to settle since punitive damages are not covered under their malpractice insurance policies.  

Knowles v Superior Court
Cal. Ct. App.

The case is on the time that the Statute of Limitations begins to run in a wrongful death case.  The patient died November 24, 2000, after a renal artery stent placement on November 20, 2000 by Knowles and aorta aneurysm graft the following day by others.  Within the statute of limitations a wrongful death claim was filed by the family against all but Knowles.  A year later a physician reviewer found that Knowles may have been the cause.  The family then attempted to add Knowles as a defendant.  The trial court said okay but the appeals court overruled. All that is necessary for the running of the Statute is the suspicion of an injury caused by another, not actual knowledge.     Top

Pharmaceutical

Pfizer has won a Los Angeles jury decision that Rezulin was not responsible for three people's liver disease.  The company had recorded a $933 million charge to pay about 35,000 personal injury claims.  

Sullivan v DeJong
Ill. Ct. Appeal

In Illinois there must be a certificate of merit signed by a physician prior to the beginning of malpractice litigation.  The Court of appeals stated that the physician may find out who the physician was that signed the certificate but only if the physician can show the affidavit was signed in bad faith. This can be shown by malice and not just the dismissal or winning of the underlining suit.  The Court of Appeal then ordered the proceeding not to be published so it can not be used as precedent. 

Marsingill v O'Malley
Alaska Superior Ct.

Marsingill call O'Malley after hours and complained of abdominal cramps and the inability to burp.  The doctor knew she had prior abdominal surgery and told her he would meet her at the hospital.  the patient refused and later passed out with a ruptured intestinal obstruction.  She sued and lost in Superior Court twice.  After the first loss the case made it to the Alaska Supreme Court who sent the case back for different jury instructions.  The physicians of the state are now afraid to take after hours calls and are telling patients to go to the ED.  The legislature is looking into this immunity from suit when advice is ignored as part of the potential tort reform legislation.       Top

Credentialing

Patel v Soriano
NJ Superior Ct.

Patel sued Soriano, the chief of vascular surgery, and the hospital for defamation, tortious interference with business and antitrust.  Soriano had held up the application of Patel against the credentialing requirements and publicized false information about Patel.  The lower court found for Patel on all counts.  The Appeals Court stated that Soriano did tortious interference but not defamation as Patel actually established a trade libel issue and not defamation.  Also the antitrust could not hold since there were other hospitals near for Patel to apply.        Top

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