June 15, 2007 Recent Legal News


Peer Review




Medical Marijuana






Patients v Physician
To Be Filed

An unidentified anesthesiologist had Hepatitis C and continued to give anesthesia to about 4500 patients.  Recently three people treated by the anesthesiologist have contracted the disease.  The route is thought to be via intravenous drugs.  The physician apparently did not know he was infected.       

Physicians v Louisiana

The 381 physicians of West Jefferson Medical center in Marrero, Louisiana, has filed a $100 million suit against the state for services rendered but not paid for after Katrina.  To date the state has paid $120 million for the care of patients to the hospitals but none to the physicians.   The state has raised $8 million for the physicians and states that the law does not allow them to pay physicians for indigent care, only hospitals.  

Physicians v Blue Cross/Shield

Two more insurers have settled the massive case against them by thousands of physicians for fraudulently not paying or paying late.  Blue Cross/Shield has agreed to settle for $128 million.  This is above the $49 million the plans will pay in legal fees.   

Hussain v Corban
Criminal Charges 

Dr. Mohammed Hussain was at the University of Maryland Medical Center for oral surgery and was praying at the Center when he was allegedly manhandled by a security guard of the hospital, Corbin.  Hussain has also filed a $30 million civil claim against the guard and his employer.  He was doing the Islamic wudhu of washing his hands and feet prior to prayer.  Dr. Hussain is a radiologist in Waldorf, Maryland.

Physicians v Integrated Healthcare Holdings

The majority of the stockholders of the company want the management out.  The company own 12% of the hospital beds in Orange County, California.  The physician majority state that upper management is going to bankrupt the company that purchased four hospitals from Tenet.  IIHI has debt on $45 million at the outrageous cost of 14%.  The lender has agreed to decrease the rate to 9% but has not done so.  The suit seeks an injunction for a shareholder meeting ASAP.  This is allowed in the bylaws but IIHI refuses to call the meeting stating a provision in the loan agreements that no changes in the top management without the consent of the lender.  IIHI has also filed suit against the physicians regarding the hospital real estate.  That suit is under seal.           Top

Peer Review

Jacobs v SUNY

A female physician sued the Buffalo school for gender discrimination after being terminated.  The Court said she did not prove discrimination nor did she rebut any of the charges of  poor performance as a resident.  If you can not rebut or show a reason for the problems, the case should not go to court.

Bhatt v Brownsville Hospital
3rd Circ

The physician had his staff privileges revoked and sued for interfering with his medical practice, discrimination and violating its own Fair Hearing Plan.  The physician lost in summary judgment since there was no rebuttal to the non-discriminatory reasons for termination of privileges.  He failed to show how others similarly situated had been treated.  The Court also ruled that HCQIA gave immunity for professional review actions and the physician failed to rebut that.

Mileikowsky v West Hills Hosp
Cal Ct. App

The physician had his privileges terminated at a Tenet Hospital and upheld by the court.  The physician then sued a hearing officer for terminating a proceeding prior to starting the proceedings due to the non-response of the physician.  The Court agreed that the hearing officer may not terminate the hearings due to not giving information from another hospital.  His prior peer review hearing at Tenet was terminated and upheld due to the physician's disruptive conduct. 

Smith v Deaconess Hospital
Okla. Supreme Ct.

The high court stated that the Oklahoma Peer Review Statute gave immunity from damages not from suit.  The lower court dismissed the case due to qualified immunity, a wrong decision.  The case was returned to the court for a trial.  The physician according to the facts presented had a kangaroo court proceedings.  At appeal the outside report that exonerated  the physician but was used against him was "lost." Dr. Smith could not cross examine the writer of the report since it was anonymous. The Board did not notify the physician for one year of their decision even though their own rules state it must be done within 30 days.  Dr. Smith also stated that two of the three panelists were biased but they remained.  Dr. Smith was reported to the Data Bank prior to being notified of the the final Board report, another violation.  Since his termination was not final until the Board acted he did not report the action on other hospital applications and those also denied him privileges. 

Loebel v Maimonides
NY App Ct

Dr. Loebel had her privileges terminated and sued the hospital under a wrongful termination theory.  The problem was she was not an employee and the extension of her privileges was not an employment contract.  The court found she could sue for injunction but not damages under HCQIA.  The Court also dismissed her pendant other state claims. 

In re Basco
Texas Supreme Ct

The physician was terminated from the hospital for not reporting an  incomplete med mal case against him.  He did not report on the advise of his attorney.  The hospital has an attorney that was the former partner of the physician's prior attorney.  The physician wanted the hospital attorney removed and the case went to the Supreme Court who agreed with the physician.  It should have been obvious to all initially that there was at least a possibility of conflict of interest. A waste of time and money over ego.

Brandon Hospital v Murray
Fla Supreme Ct.

The hospital was sued for negligent credentialing and in discovery was asked for the list of procedures the physician was able to perform.  The hospital stated that this was protected under the peer review act.  The Supreme Court ruled that this is a reasonable request and that the hospital should give the list.  

Eight Physicians v MEC 
Ca Ct App

 Eight anesthesiologists at Washington Township Hospital in California left the hospital with twp days notice.  The Medical Executive Committee of the hospital attempted to consolidate all the hearings and the physicians objected.  The lower court agreed with a consolidated hearing for all.  The Court of appeal reversed stating that the MEC does not have the right to make that decision, the hearing officer should make it.  Also the Court should not be involved in partially done hearings.   

Pal v Nicholson Hospital

A psychiatrist was terminated for poor performance and sued the hospital for discrimination, retaliation and hostile work environment.  The court gave summary judgment to the hospital on all three counts stating the physician did not prove any of the counts.   

Adkins v Christie
11th Circ

The 11th Circuit joined the 4th and 7th Circuits in ruling that there is no peer review privilege in federal cases.  Adkins, a Black, was terminated and sued for racial discrimination.  In discovery, Adkins asked for peer review documents of all hospital physicians for seven years.  The hospital resisted under the Georgia peer review law.  The lower court gave partial information to Adkins and then dismissed the suit.  On appeal, the lower court was overturned since it was important to have the information to show disparate treatment. This followed the original Viramani decision.    Top


Collie v Arkansas Board
Ark. Supreme Ct.

The physician had a sexual relationship with a patient after he had attempted to end the professional relationship.  The Board revoked the physician's license.  The court said that this was too harsh and ordered a one year suspension of the license.  The Court also said the Board was within its right to dole out the punishment. 

Cornfeld v Maryland Board
Maryland Ct. App

Cornfeld had been disciplined by the Maryland Board for unprofessional conduct by making false statements to both the peer review panel and the licensing board.  Cornfeld contended that none of this was the practice of medicine and should not be entered in the record.  The court disagreed.  They stated that the review of a care of a surgical patient relates to the effective delivery of patient care and therefore constitutes the practice of medicine.      Top


Illinois v Carle Clinic& Christie Clinic

The Illinois Attorney General filed an antitrust action against the two competing Clinics for adopting nearly identical policies to stop taking new Medicaid patients.  The interesting aspect is if the two entities actually conspired to boycott or did it separately.  If the did conspire, what would the penalty be outside of a consent decree.  Treble damages of nothing is nothing.  The State alleges that the Medicaid patients had to receive care at a hospital ED and that raised the cost of care to the program.  The Medicaid program in Illinois is one that does not pay enough to care for the patient, so the Clinics are losing money on each one they take.  Illinois may have a real problem in forcing either Clinic to buy into their poor paying program.        Top


Rodriquez v King Hosp.

In a case that will never see court and should mean the closure of the worst hospital in the country, a woman in the hospital's emergency room died due to the uncaring attitude of the people.  She had abdominal pain from a ruptured organ and never was triaged and her name never appeared on the ED log.  Her boyfriend and another person were so upset at the time, they both called 911 to have her transferred.  This was rebuked by the 911 operators. 

Irvine v UCI
Ca App Ct

Two years ago Irvine sued the University of California Irvine for negligence and fraud over their ill fated transplant program.  She settled for $50,000 but found out prior to receiving the check that the hospital had rejected 38 livers and 57 kidneys available to her.  She refused to cash the check and asked the court to overturn the settlement agreement.  The judge refused.  The court of appeal overruled the judge and said the case is to go to trial.  Irvine is also suing her original attorney for legal malpractice for pressuring her into accepting the settlement.  

Low v Henry
Texas Supreme Ct.

Henry was the attorney for White and filed a med mal case against Dr. Low and Dr. Smith.  Henry had the medical records for months prior to filing the suit.  Most of the suit was about the drug Propulsid and the plaintiffs were two of the plaintiffs named.  Neither had ever prescribed the drug to the patient.  The case was non suited but a suit for sanctions against both the plaintiff and the attorney continued.  The trial court ruled for a $50,000 sanction against the attorney.  The Court of Appeal reversed and the Supreme Court agreed with the trial court except that the trial court had not explained how they arrived at the figure.  The case was remanded back to the trial court for an explanation.  This shows the need for someone with some knowledge to review a case against each defendant prior to filing suit.  

Patients v ApotheCare
To Be Filed

Three people died after a mistake in the compounding of a medication resulted in a medication that was ten times as potent as it should have been.  The drug was sent to the Portland, Oregon, Center for Integrative Medicine only.  

Chamley v Khokha
ND Supreme Court

 In an interesting case an employed physician surgeon was waiting to do his own case when he was asked to help another physician in an emergency surgical case.  The patient died and the family sued the surgeon and the physician who came to help.  The physician claimed Good Samaritan. The court said no.  He was paid by the hospital and therefore could not be a Good Samaritan since he had an expectation of payment for the service.  

Zurga v Burdette Tomlin Hosp

The hospital had a 30 minute rule for on call physicians. The patient claimed injury for the neurologist not coming to the hospital within the time period.  The hospital said it had done its job by notifying the physician.  The physician was known to disagree with the hospital policy and told the hospital he did not intend to comply.  Summary judgment for the hospital and physician denied.   

Pike v Decatur Hosp.
SD Ind

The patient was injured by a ED physician working for a management company in a hospital ED.  The physician had lost his California license earlier for mental illness and this was not picked up on the hospital credentialing process.  The management company moved for summary judgment since it is not a healthcare provider.  The Court ruled against the company since it was working for the hospital and therefore was an agent of the hospital.  They may be held liable for negligent credentialing. 

Knizel v Bozarth
Texas App Ct

The physician was sued over a knee surgery.  The issue is that he is employed by a medical unit supported by a medical school.  The physician requested the court to have his employer. University of Texas, to stand in his shoes.  The court ruled that the physician doing university work is an employee of the university.  

Horowitz  v Plantation Hosp
Fla Supreme Ct.

The patient was treated at a physician's office and injured.  He sued the physician and won a judgment of $859,200.  The debt was not collected since the physician carried no med mal insurance and had no significant assets.  The patent the sued the hospital where the physician had privileges stating the hospital should be liable for not making sure the physician could fulfill his financial obligations.  The Court said the legislature had never passed a law to that effect and therefore none exists. 

Jewish Hospital v White

Jewish Hospital in Louisville has filed suit against the two lawyers that filed multiple suits against it.  The attorneys filed 96 suits against the hospital and 84 have been dismissed so far.  The attorneys have withdrawn from the remaining suits.  The attorneys filed against the hospital for methicillin resistant Staph infections allegedly due to unclean rooms.  The attorneys never had any expert review any case prior to filing.    Top

Medical Marijuana

Washington v Hanson
Washington Ct. of Appeal

Hanson, a legitimate user of medical marijuana under the state law, was convicted in state court for using marijuana.  The court of appeal overturned the lower court and stated that Hanson had met all the criteria under state law to be exempt from prosecution.  This is the first ruling in the state for the medical marijuana justification.      Top


Spillman v SW La Hosp.

In another case where the attorney did not know the law or at least did not apply it correctly, Spillman sued the hospital under EMTALA and not under med mal.  The patient had a ruptured appendix and had an abdominal CT scan for severe abdominal pain.  The report was erroneous and the patient discharged.  The Court found that the hospital did not treat the child differently than others and did do a good faith exam.  The Court again reiterated that EMTALA is not a federal med mal statute.

Isaac-Burgos v Rodriquez

The patient went to the ED complaining of dehydration and generalized weakness.  The patient had a history of heart disease.  He was kept in the ED for several days and then discharged.  He died two days later.  His family sued under EMTALA and won the summary judgment motion since no physician or RN triaged the patient.  It was done by an unlicensed foreign medical graduate.  The hospital also did not follow its own protocols.         Top


Patients v Blue Cross

Prior lawsuits against Blue Cross for fraud due to their retroactive canceling of coverage to patients had been joined by the California Medical Assn. and the California Hospital Assn.    Blue Cross contended they never revoked authorization for a procedure only the payment due to perceived fraud by the patient.   Following the entrance of these groups into the fray, Blue Cross abruptly stated it would change its policies. It has agreed that in order to cancel the individual policies it would have to show actual fraud and not inadvertent mistakes. Blue Cross' change of heart comes after a class action law suit and long hours of negotiation between the plaintiff attorney and medicated by the California Department of Managed Care.

US v Kasim

Dr. Jihad Kasim of Valparaiso, Indiana, has been charged with Medicaid fraud.  The charges state he got information from the hospital charts of women who gave birth and billed for non-existent care to the tune of over $1 million.  The prosecutors want the money collected illegally, his two houses, three cars and a 20 foot speedboat. 

US v Loma Linda University

Loma Linda has paid to the feds over $2 million to settle the charges that they over billed Medicaid.  They, of course, deny any wrongdoing but paid anyway.  They may deny.    

California v Physicians

 California has filed charges against Drs. Michael Chan, William Hampton and Mario Rosenberg for fraud.  They are also charged with paying cappers.  Bail per physician is well over $1 million.  They are accused of recruiting people from all over the country to come and have medically unnecessary procedures performed.  They billed for both the facility fees and the professional components.  This now brings the total defendants in this alleged scheme to 17 people.  

US v Brown

Dr. Zack Brown and his biller of Detroit were both found guilty after a three week trial.  The jury was out one hour.  He faces 15 years in prison.  The physician also has two other verdicts against him for false billings and selling prescriptions without a license.  

Illinois v Physicians

Illinois has filed a civil complaint against MRI centers that contends that many have phony lease deals with physicians.  The state states this is a kickback scheme.  The physicians leased the equipment and billed for the non professional part even though the procedure was done in the MRI Center.  The suit alleges 20 Chicago area radiology centers are named.           Top


Patients v Baltimore
To Be Filed

A Baltimore health center has lost a computer with the personal information of about 6000 patients.  They are offering free credit checks to those affected.          Top


Milsaps v Ohio Valley Heartcare
Ind. Ct. App

Two cardiac physicians left the group to set up another practice.  The group sued under the non-compete clause.  The physicians stated the clause was unenforceable due to the material breach of the contract by the group for poor billing practice that resulted in collections of about $2 million that were two years in arrears.  The lower court upheld the clause but restricted the terms.  The appeals court agreed with the physicians that there was a material breach therefore the contract was unenforceable.  Cases like this are a shame since they cause such hard feelings and the Group knew or should have known something was wrong with their billing.  This should have been corrected early on and the suit avoided.

Mixon v Iberia Surgical
La Ct. App

Dr. Mixon was one of the founders of the surgical group and was eventually terminated for continually disputing the group's billing practices.  He sued the group for wrongful termination and not getting his share of the groups worth.  He lost on all counts.  He got what the original contract stated he should get and was denied any wrongful termination since his actions were not protected under Louisiana law. 

Flowitt v Ashland Hosp
Ky Ct App

Dr. Flowett was evaluated by a neuropsychologist and found to be cleared for practice.  The hospital then wanted a five year participation in the Impaired Physician Program.  The physician refused and a severance agreement was negotiated.  The physician was denied privileges at other hospitals and went back to Ashland.  She was refused there and sued for ADA and breach of contract.  She could not prove she was mentally disabled, so lost that portion of the case.  She won the summary judgment of the breach of contract since the imposition of the five year program was not reasonable. 

Usukumah v Greenburgh Health
NY App Div

The physician was an employed physician and was to be paid a salary and a percentage of all surgeries and deliveries over 100.  He sued for breach of contract.  The physician won on summary judgment for monies for covering other physicians as well as his own work.  There still is a triable issue of fact that must be tried whether he is entitled to money for his administrative work time.         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.