March 1, 2004 Recent Legal News

Peer Review

Deposition of Harrington Hosp
Mass Super. Ct.

The patient sued the hospital after an outdated device was implanted.  The patient sought the production of a nurse prepared report of the incident.  The hospital objected stating it was under peer review.  The court stated the hospital presented no evidence that the report was protected in any way and should be given to the plaintiff.

Christy v Salem
NJ Super. Ct.

The patient received a spinal cord injury during removal of an ET tube and sued.  There was a request for production of the peer review committee report since the x-rays were "missing".  The court upheld the privilege but then dismantled it by stating that all facts could be discovered but not deliberations or conclusions.  It especially allowed any information relating to the "missing" x-rays. 

Buentello v Advocate Health 
Ill. Cir.

The Hospital had a Board Certification requirement and when the physician failed to meet the requirement she was denied reappointment.  The Medical Staff bylaws allowed the hospital board to grant an exception to this requirement.  Following the reapplication of the physician the board created a policy on when the exception was to be made and then refused the physician. The guidelines were never submitted to the medical staff.  The medical staff had recommended her re-credentialing.  The Court stated the guidelines were neutral and focused on professional commitment and standing, and that nothing changed in the medical staff bylaws regarding the need for certification.   

Little Rock Cardiology Clinic v Baptist Health  
Ark. Dist. Ct.

 As written here previously the hospital had dismissed six cardiologists for economic credentialing.  The cardiologists sued for injunctive relief.  Now the hospital has answered by asking for a dismissal of the suit.  

The judge ruled that the case should be dismissed in the federal system since it did not raise a substantial question of federal law.  The physicians immediately went to state court to ask for a Temporary Restraining Order against the hospital to prevent the removal of the physician for economic reasons. 

The hospital to get out from under the potential for the TRO is allowing the six cardiologists to remain on staff for an extra month or until the judge can grant or deny the TRO, whichever comes first. These physicians had also been kicked out of Blue Cross when they were to lose their privileges.  That should change under the "any willing provider" law that is effect in Arkansas.

Taylor v Kennestone Hospital
Ga Ct. App.

An admitted sexual harasser physician had his privileges revoked and then sued the hospital for violating its bylaws.  The Court dismissed the physician's claims since they are immune under HCQIA and the state's peer review statute.  The hospital had stated it would not report the doctor to the NPDB but that was unenforceable since it would violate public policy and federal law.        Top

Consent

Clark v McEnany
Wis. Ct. App.

A patient died during surgery and the wife sued stating the physician did not get informed consent since he failed to state he was under discipline and was required to have an assistant at all surgeries.  The lower and appellate court agreed that the jury had enough evidence to find for the defendant.        Top

Employment

Bedrosian v Tenet
Cal. Supreme Ct.

The California high court has refused a request by Tenet to overturn a court of appeal decision awarding Bedrosian $148 million.  Bedrosian was the co-founder of NME, the predecessor of Tenet.  He claimed and the courts agreed that Tenet did not give him his due stock benefits when he was terminated without cause.  Tenet states it had already set the money aside to pay. 

Cooksville v Humphrey
Tenn. Supreme Ct.

A hospital entered into an exclusive contract with a group of radiologists.  Then the former radiologists had their privileges removed and were terminated without a hearing.  The Court stated that the hospital may enter into exclusive contracts under the state's Hospital Authority Act.  The medical staff bylaws did not allow for a hearing if there was a termination via an exclusive contract, so no due process rights were violated.          Top

Malpractice

McMahon v Magee-Womans Hosp.
Filed

McMahon, a physician, has filed a malpractice suit against the hospital for mishandling and lying to cover up its error in the physician's pap smears.  This is tied to the two other law suits by the pathologists against the hospital for retaliation for reporting the errors.  There is another suit on the horizon which is attempting to become a class action against the hospital by all the women who had their Paps read erroneously.  McMahon had a delay in diagnosis of a pre-cancerous condition which led to a high grade lesion.  The original reports were destroyed by the hospital.  

Cohen v Johns Hopkins
Settled

Hopkins admitted fault in the death of the two year old Cohen, from a high concentration of potassium in a home feeding solution.  Part of the settlement was the naming of a playroom at the hospital after the deceased.  The family set up a foundation at the hospital to help children with cancer.  The amount of the settlement was no disclosed.

Cooper v Binion
Ga. Ct. App.

A patient sued the ED physician and the hospital for medical malpractice.  The lower court dismissed the hospital claim since the ED physician was an independent contractor.  The Court of Appeals disagreed and reversed since the hospital controlled the work schedule or the ED physician indicating an employer-employee relationship.      Top

Criminal

People v Pirnia
Ca. Supreme Ct.

The California Supreme Court refused to overturn the non-publication of the suit.  The suit was that a physician who had his license suspended did a breast implant that turned bad. Pirnia then refused to care for or talk to the patient. He was tried and convicted of mayhem since not only did the implants need to be removed but so did normal breast tissue.  Mayhem is when one maliciously deprives another from a part of a body or disables or disfigures it.  Malice is shown by his unwillingness to remedy the situation and by his doing surgery while under suspension.   

Wolfe v Worker Compensation
Decision  

 Taylor Wolfe suffered an injury at birth and after getting nowhere on the needed care went to the no-fault Virginia Workers Compensation Commission for help.  They have a program that gives lifetime care to birth injury children.  Four years later she is getting a new hearing after the Commission stated the OB was negligent for not getting cord blood to rule out oxygen deprivation.  This ruling which goes against all past medical tort theories will allow the information of negligence to be introduced at the hearing.  The lack of taking cord blood is not considered a breach of the standard of care by any organization.  This was based on one opinion by one "expert".      Top

Defamation

Valley Heart v Blue Cross
Filed

The physicians of Valley Heart and the medical staff of Doctors Medical Center in Modesto, California. are suing Blue Cross for defamation.  The reason is Blue Cross stated that the hospital billed for multiple medically unnecessary coronary bypass surgeries.  The insurer originally stopped paying for the procedures but soon after started paying again.  The CEO had previously filed a similar defamation claim against Blue Cross.  The physicians state that Blue Cross admitted the accusations were false and then repeated them publicly.  I hope that the physicians win enough money in punitive damages to make the company think many times before using these tactics again in negotiations with hospitals.        

(Please see story about defamation in Recent News-Peer Review)        Top

Fraud and Abuse

US v Canon, MD
Sentenced

Dr. Canon, an orthopedic surgeon was sentenced to 41 months in jail for being found guilty of 50 counts of health care fraud.  He also has to pay restitution of $800,000 and serve three years of supervised probation after release.  He was accused of overbilling multiple insurers for nerve blocks when the government states the charge should have been for trigger point injections.       Top

EMTALA

US v Jackson Memorial Hospital
Fined

HHS fined the above hospital the maximum amount of $50,000 for patient dumping.  This is the third violation for this hospital.  This time they refused a transfer of a 30 year old female for burns reportedly because the patient did not meet the criteria for its burn unit.  The patient needed to be airlifted to another facility when the patient was found to have burns over 23% of her body.        Top

Medical Marijuana

The 9th Circuit denied the federal government's request to reconsider its ruling to allow California residents to grow and possess marijuana for medical reasons.  This backs up the three judge panel ruling in December, 2003.  This also applies to six other states in the Circuit where Medical Marijuana is legal under state law.  The final step for the government is the Supreme Court.        Top

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