June 15, 2005 Recent Legal News
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Opinion of CA AG Lockyer
June 1, 2005 Office of AG
The California Attorney General was asked to write an opinion about whether a hospital district in California may provide unconditional indemnification to participants in a peer review hearing. The short answer is no. The opinion goes into the reasons via certain California Codes but ends with the telling statement in footnote 6 that "Conceivably, the use of unconditional indemnification could cause a peer review committee member to act in such an unrestrained way that the peer review process would not be fairly conducted as intended by the legislature."
Longa v Vicory
Ind App. Ct.
The plaintiffs sued the hospital and medical staff for deaths of family members that occurred while under the care of a nurse. The claim is that the members of the medical staff have a general duty to provide quality care by doing peer review. The Court stated that individual members of the medical staff have no peer review duty to patients. Top
US
v Abington
Settlement
This hospital needs new attorneys. The Pennsylvania hospital was accused of laboratory billing fraud. It could have settled several years ago for $1 million. It now paid $4.2 million in today's dollars. It originally stated it did nothing wrong, but of course it did. It "remained deliberately ignorant " and eventually stated it made errors that it blamed on the system when it was their own mistakes.
US
v Robert and Bonnie Telik
Settlement
Dr. Telik and his wife settled the charges against them that their business EMSCO Billing falsely claimed and upcoded the billings of emergency room charges. The physician and his wife will pay $700,000 and the prior owner of the company will pay $1.1 million.
US
v Woman's Health Conn.
Investigation
The government is investigation if Woman's Health Connecticut of Avon, a management service, is part of an illegal insurance kickback scheme. This scheme may have led to higher med mal premiums for the physicians. Top
Lee v Trinity Lutheran Hosp
DC WD Missouri
Dr. Sharon Lee sued the hospital for breach of HCQIA when her privileges were suspended for originally prescribing medications that at that time were not approved to be given in combination. The hospital used outside experts to evaluate the charts as did Dr. Lee. The court granted and later upheld the summary judgment for the hospital. It is interesting and I believe wrong that the court would not look at the medical executive committee overruling the peer review committee recommendations. It never makes sense to me to allow the prosecutor (the MEC) to also be the judge and jury and allow it's recommendation to go to the Board and not the peer review report. The peer review committee was convened to look into the questionable cases in detail. The MEC never does this but only relies on reports of others and then substitutes its own judgment for those reports it has commissioned. I wonder for those hospitals that use this why it is necessary to even commission the peer review committee. It is also interesting in this case that the original drugs that caused the peer review are now used routinely in combination. However, the court states that it is what the hospital believed at the time that is important for HCQIA relief. It should also be noted that the District Court stated it made no difference that the hospital charges waxed and waned as long as the final goal was quality of care.
Baptist v Murphy
Ark. supreme Ct.
The Baptist Board issued a order that anyone with an interest in a competing hospital could not be reappointed to the staff. The physicians sued under multiple state claims. The lower court ruled for the physicians and the Supreme Court ruled the lower court was wrong and sent it back to the lower court to make specific findings on the issue of the physicians likelihood of success. The Court also believed the physicians would prevail at trial but there needs to be specific reasons in the order of the court.
Bedrossian v Northwestern Hosp.
7th Circ.
Bedrossian was terminated by the hospital following a stint in the military and filing a qui tam case against the hospital. The District Court denied the physician request for an injunction to stay on the staff. The 7th Circuit affirmed. They stated that the physician did not show irreparable harm. The court noted that lost income, damaged reputation, deteriorating skills, and the inability to find another job was not irreparable harm. I wonder what is in their eyes.
Kadlec Med Ctr. v Lakeview
Anesthesia Assoc.
ED LA
In an interesting case an anesthesiologist was terminated from hospital A and hired by hospital B. Hospital B asked for recommendations from hospital A but hospital A only gave dates of employment. The physician was terminated for failing to respond an possible diverting Demerol. At hospital B a patient was injured due to the anesthesiologist's negligence. Hospital B sued Hospital A for not being forthcoming in their references. The Court sided with hospital B since hospital A, under Louisiana law, had a duty to disclose if there was a pecuniary interest and a special relationship between the parties. In reaching their conclusion the court stated the parties had a shared interest in patient safety and a pecuniary interest since the information is provided in the normal course of business. Top
Maryland Board v Tunis
Settlement
Dr. Sean Tunis, the Chief Clinical Officer ant CMS agreed to a one year suspension from practicing medicine due to falsifying his medical education documentation. The agreement included a $20,000 fine as well as going to ethics school and doing 35 hours of CME. Dr. Tunis is still on paid administrative leave from his position as COO of Medicare and director of the Office of Clinical Standards and Quality. Top
Gonzales v. Raich
US Supreme Court
In a 6-3 decision with the liberal and conservative members split, the Court decided that the Commerce Clause of the US Constitution allowed the Congress to pass laws that seemingly only apply to intrastate commerce. The Court did express sympathy with the patients who rely on the medication and stated that Congress could change the rules on this medicine if they wished. The federal agents in California as well as the California state agents that commented on the decision all agreed that the Supreme Court decision would not change their looking the other way towards those individuals who use the medicine. Top
Physicians v HMO
US Supreme Court
The Supreme Court again ignored the HMO industry appeal that they should be allowed to stand trial for their cheating ways toward physicians. This will probably lead to more settlements as has already been performed by Aetna and Cigna. They do want to go to trial on racketeering. All courts have allowed the trial now set for this fall to go forward.
Physicans v Insurers
NC Court Filing
The North Carolina physicians are suing their insurers for the same thing as the above case, the insurers arrogance and cheating. This case may end up combined with the above case in Miami. The idiots at Blue Cross stopped talking to the physicians once the suit was filed. They could have potentially mitigated damages by continuation of talking and making the necessary changes. UnitedHealthcare has already paid fines in the state for their practices.
Cook County v Blues
Settlement
Cook County, Illinois sued the Blues for not covering bicycle helmet costs for children with misshapen heads. The Blues agreed to pay all the families up to $3000 in out of pocket expenses for the special helmets. Top
Alcon v Insurer
Colorado Supreme Court
Mrs. Alcorn was injured in an auto accident. The defense insurance company has requested all her records. The Court has stated that they are only entitled to those records that pertain to the accident. The woman's attorneys must document and justify the withholding of the documents. Top
Chaoulli v Canada
Canadian Supreme Ct.
In a major blow to the only industrialized country that does not allow private healthcare, the Canadian Supreme Court has ruled that Ontario's law banning private healthcare is illegal. This may be translated to the entire country although the Court did not do so. The article goes on to state the rationale for the decision is the long waits for care that causes the patient's "life and personal security, inviolability and freedom" under the Quebec charter of human rights and freedoms. It currently takes approximately 38 weeks between an initial visit to the FP and having orthopedic surgery. It also takes over two months to begin radiation therapy after the diagnosis of cancer. Those that can afford it go the United States for treatment. Top
Smith v Portera
Tenn. Ct. App.
The physician was sued for medical battery because an additional surgery was performed. The law states it is ok to do an additional surgery if it is due to an unforeseen circumstance, in the patients best interest and indicated by good medical practice. The trial court allowed the summary judgment for the physician. The court of appeal reversed stating that they can not tell if there was an unforeseen circumstance that required additional surgery. This is an issue for the jury to decide. To trial.
Romero v KPH
Texas Supreme Ct.
The patient sued the hospital for negligent credentialing of a surgeon. The surgeon had a history of drug abuse and the patient claimed the hospital knew about it. The jury found buy clear and convincing evidence that the hospital had acted malicious by granting the privileges. The Court o Appeals reversed as did the Supreme Court since the hospital could not be shown to have acted with malice. The hospital peer review process was privileged and therefore no true evidence of malice could be shown only inferred which is not good enough.
Pandling v Coral Springs Med Ctr.
Fla Ct.
Mrs. Pandling died after chemotherapy for a cancer she didn't have. She had a lung nodule but not cancer. She had no surgery but did have chemotherapy. Mr. Pandling won $8 million for the malpractice by the hospital and two physicians. 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.