June 15, 2001



Elder Abuse v Negligence

Product Liability


MD v Medical Group

Informed Consent

HMO Suit

Illinois Sues Blue Cross


A botched circumcision by a resident has cost UC Davis $1.42 million.  The large amount is due to the claim of battery not negligence.  Negligence or medical malpractice is covered under MICRA but battery is the unconsented to touching of another, an intentional tort.  Many times intentional torts are not covered by malpractice insurance and may be subject to punitive damages.  In this case the plaintiffs proved that the consent was not signed until after the circumcision, making it fall under battery.  At least get oral consent and document it prior to a procedure.

Dardinger v Anthem 
Ohio Ct. Appeal

If there was ever a case to show the need for tort reform, it is in Ohio.  An estate of a  woman who died from a brain tumor sued two insurance companies, the primary insurer and the guarantor company.  The claims for wrongful death and intentional infliction of emotional distress were tossed prior to trial.  The jury awarded the estate on the remaining issues $51 million, including punitive damages. The breakdown was $2.5 million for compensatory and $49 million for punitive damages. The Court of Appeal has ordered a new trial on the damages issue. The second insurance company was also dismissed from the case as it's contract with the first company only made it pay for treatment if the first company could not. Since Anthem had stated the treatment as pre-approved the insurer had reliable evidence as the policy required.  The Court also allowed the business records of Anthem to show the amount of complaints filed against the company as an exception to the hearsay rules.  This will cost Anthem many many millions to even settle this bad faith case. The US Supreme court has stated that the guidelines for punitive damages are (1) the degree of reprehensibility, (2) the ratio of compensatory to punitive damages and (3) the difference between the award and what could have been assessed in civil or criminal sanctions for like cases.

Wood v Oak Hill Community Ctr.
Ohio Supreme Court

A patient with chest pain had a CK-MB% of 12.2.  This is considered abnormal but was labeled as normal in this hospital's lab.  The patient sought to find the names of other patients who had their lab results erroneously reported as normal.  The Court said in order to prevail the patient needed to prove a clear legal right to the act, the legal duty on the hospital to perform the act, and no alternative remedy.  The court said that negligence, medical ethics nor JCAHO standards provide these legal duties.  The case may proceed but without the requested information.

Elliott v Methodist Hospital
Tex. App. Ct.

A woman requested her pathology slides for use in a second opinion.  The hospital refused and continued to refuse for 18 months.  During this time the woman had rectal bleeding and pain, depression and treatment with anti-depressants. The woman sued for emotional distress and the trial court allowed a motion for summary judgment for the hospital. The appeals court allowed the case to proceed for emotional distress, which includes outrageous conduct.  I do not understand the mentality of the hospital to refuse to turn over the slides, unless they were read wrong and are facing a large malpractice suit as well. I would urge that hospital to replace their legal counsel if they recommended the hospital's action.                    

Humana v Erdely
Fla. App Ct.

A patient sued her physician and HMO for malpractice, vicarious liability and negligent hiring.  She requested production and trial court agreed with the production of the HMO application to join the HMO.  The District Court quashed the request stating the Florida peer review law applied to HMOs and the application is part of peer review and privileged.                  

Ford v Norton
Ca. Ct. App.

The California Court of Appeals in a recent decision has stated that psychiatrists are exempt from liability for early discharge on an involuntary hold but psychologists are not.  The case involved a patient on a 5152 involuntary hold who was discharged early from the hospital after an examination by a psychologist and a discussion by the psychologist with a psychiatrist.  The psychologist signed the discharge order. The patient went home and stabbed his roommate, who sued. The court stated that the Letterman Petris Short (LPS) Act specifically let only psychiatrists off the hook if a patient on a 5152 hold is given an early out and harms another.  

Missed Diagnosis

Haceesa v Northern Navajo 
USDC New Mexico

A federal judge awarded the estate of the deceased $2.1 million for a missed diagnosis of Hantavirus.  The patient was seen by a nurse practitioner who diagnosed the flu even after being trained that those symptoms may be early symptoms of the deadly disease.  The large amount, about three times the allowed amount, is because the New Mexico tort reform laws only cover physicians.                     Top

Elder Abuse v Negligence

Covenant Care v Superior Ct.
Ca Ct. App.

The family of a patient that died in a nursing home filed for negligent care.  Two years later they amended their complaint for willful misconduct, elder abuse and sought punitive damages.  The trial court allowed the amended plea and Covenant appealed. The appeals court ruled that even though the statute of limitations for negligence is two years, this does not apply to elder abuse just because the defendant happens to be a health care provider.        

In a second case decided this week a Superior Court in California found a physician at Eden Hospital guilty of elder abuse by not providing enough pain medicine to the cancer patient in the days preceding his death. The jury did not decide if the physician's conduct was intentional.  The verdict was $1.5 million and will be reviewed by the judge for possible reduction and whether there should be a new trial on the intent issue.  Elder abuse is not covered under MICRA and if there is intent found, punitive damages may be appropriate.  Also, intentional actions or elder abuse may not be covered by the malpractice carrier.  Bankruptcy City.                 Top

Product Liability

Grenier v Medical Eng Corp.
5th Circ

The patient following a double mastectomy had silicone gel breast implants made by MEC implanted in 1983.  In the early 1990s she began having some health problems and found in 1994 that she had a left silicone bleed, but the implant was intact.  The plaintiff alleged defective design, defective manufacture and failure to warn of a potentially dangerous product. The Court granted summary judgment for MEC and the Appeals court agreed.  There was no dangerous design proved just because an injury occurred.  For failure to warn the plaintiff the plaintiff needed to show evidence and didn't that the bleed was a damage causing characteristic and MEC failed to warn.  

Boeken v Philip Morris
LA Superior Court

A jury awarded Boeken $3.5 BILLION in damages for his lung cancer from smoking Marlboro cigarettes.  The jury found for the plaintiff on fraud, negligence and manufacturing a defective product.  The award was for $5.5 million for compensatory and $3 BILLION for punitives. The jury rejected the argument that Philip Morris did nothing to cause Boeken to smoke nor did it keep him from quitting.  Boeken now at age 56 has lung cancer. This award is actually good for Philip Morris since there is no way it is in line with reasonableness and will be overturned.

Empire v Tobacco Firms
Brooklyn District Court

In another setback for the tobacco industry, the first case won by a health insurer happened on 6/5/01.  Empire won $17.8 million for healthcare dollars put out due to the tobacco industry.  Empire had sued for $2.4 billion. I guess you have to be an individual to get that much. The cause was for deceptive business practices.  Both sides claimed victory in the case. The plaintiffs said they were disappointed in the amount but were happy with the basic verdict. The small award is a victory for the companies, who plan to appeal.  Appeals courts in the past have stated the insurance companies are too far removed from the actual harm to the smoker. This includes the 2nd Circuit which has ruled for the tobacco industry in similar suits before.

Schell v GlaxoSmithKline
Wyoming Superior Court

A Wyoming jury has awarded $6.5 million to a family of a person who committed suicide and killing three others after taking Paxil. The man took two Paxil prior to shooting his wife, daughter, granddaughter  and himself to death. The case was based on the company knowing about the possibility of some patients becoming suicidal but failed to warn. No antidepressant makers warn. The total award was $8 million but found Schell 20% liable for the killing.  The company has no intention of adding a warning since they do not believe there is any evidence to cause them to make any label changes. The appeal should be interesting.                Top 


Phelps v Optima Health, Inc.
1st Circ.

A nurse injured her back on the job.  She was later fired and filed suit for discrimination under the ADA.  The District Court and the 1st Appeals threw out the case because she was not qualified to be a nurse.  The job specifications called for the ability to lift 50 pounds.  She could not do that.  There is nothing in the law that states that the clinic is required to change the nursing requirements, nor is it required to create a new job for the plaintiff.  The Court also found the nurse was derelict in her duty of cooperation in an interactive process.                                     Top

MD v Medical Group

Hendershot v Indiana Med Network
Ind. Ct. App

A physician was sued by his medical group for breach of the covenant not to compete.  The group filed for and won a summary judgment.  The appeals court overturned the lower court since there were triable issues of fact. Here the issues were whether or not the network devised a new payment formula in keeping with the original agreement and whether the physician received proper payment.  If the physician can prove a breach of contract by the group prior to joining another group, the physician would be relieved of responsibility.  The group tried to state that since the physician had worked under the contract for three years the issue should be waived.  They lost here as well since their contract specifically stated that performance would not constitute a waiver or consent to breach.  Back to trial.

Carr v health Ins Plan of Greater NY

A physician sued his former group for retaliation when they refused to rehire him despite the fact he was not board certified and the prior requirement by the insurance company regarding certification had been dropped.  The group asked for and was denied summary judgment since the physician's allegation that the group would rehire him only if he dropped a lawsuit for discrimination was enough for a retaliation claim.  Two stupid people: the medical groups and attorneys.             

A Florida pediatrician is suing Blue Cross for deselection.  He was one of many recently deselected physicians by the insurer.  The suit is for interference with business and the article states there have been other successful suits for patient/doctor interference.  I believe if this doctor did not get a a notice and hearing he should be able to sue to get his due process.  I doubt he will win on the grounds he is suing for.  His best bet is to have his patients go to their employers to put pressure on the insurer.       Top

Informed Consent

Duttry v Patterson
Pa. Supreme Ct.

Prior to surgery and major complications the patient asked the physician about his experience in this procedure.  He stated once per month but in reality had done only nine in the past five years .  The plaintiff stated that this negated the informed consent.  The court disagreed.  They stated the evidence of a physicians personal characteristic and experience is irrelevant to an informed consent claim. Informed consent only requires physicians to provide material information necessary to understand the nature of the operation, how serious it is, the organs involved, the malady sought to be helped and the possible results.  The physician must state this so that a reasonable person would consider whether or not to have the operation. The court stated that this opinion does not prevent the physician from being sued for negligence or misrepresentation.                       Top


Doe v HCA of Tenn.
Tenn. Supreme Ct.

A patient signed an "assignment of benefit" as part of the hospital admissions.  The patient is usually responsible for the 20% of the fee.  The patient did not pay and the hospital initiated collection.  the patient sued since the hospital charged unreasonable fees.  The hospital countersued for the balance of the bill. The Supreme Court stated the contract was unenforceable against the patient since the term "charges" was too vague. After ruling against the hospital on the contract, the court went on to state that the hospital was entitled to the reasonable value of its services and referred the case back to the lower court to determine the value of the services.

Parkview Hosp. v Roese
Ind. App. Ct.

A Medicare patient involved in an auto accident sued to quash a bill of $56,000 for her treatment from the accident. She also had auto insurance.  The court ruled that Medicare prohibited billing them as primary if auto liability insurance is available.  This federal law   preempts the Indiana Statute.   Top

HMO Suit

In the suit by multiple physician, patients and three state medical societies, the Florida District Court judge ruled that the members of the health plans had not shown they had exhausted all their internal remedies or that it would be futile to attempt to do so.  He also rejected a motion to dismiss a RICO claim against Humana but did dismiss the claim against the other defendants.  He did allow a refilling of the RICO claims at a later time when more information may be available.                                    Top 

Illinois Sues Blue Cross

The State of Illinois has filed suit against Blue Cross and Blue Shield for consumer fraud.  The State alleges that the insurers have refused to cover a medical device called dynamic othotic cranioplasty (DOC).  The device if used early may prevent later costly surgery. The State alleges that the Blues consider it experimental even though it has been approved by the FDA. The suit is to force the coverage for the device, a $50,000 penalty and attorney's fees.  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.