March 1, 2005 Recent Legal News
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Providers v Insurers
To Be Filed
In a new suit that is soon to be filed by the providers of Illinois, Tennessee and New York the providers, including hospitals are going to sue for payments for surgical trays. The attorney for one of the insurers states that physicians could be headed for a fraud complaint if they charge for surgical supplies not covered by the cheap insurers or fail to use necessary surgical tray items to the detriment of the patient. Should make for an interesting court battle that the insurers will probably lose in the long run.
Kotler v PacifiCare
Ca. Ct. App.
In a summary judgment case the facts are that Kotler had symptoms and requested a referral to an infectious disease specialist for Lyme Disease. The specialist gave the patient an appointment for six weeks away since he only saw PacifiCare patients one day a week. The patient asked his primary physician for an earlier appointment due to increasing symptoms. The specialist could not see the patient any sooner so he went to an outside specialist. This specialist diagnosed Lyme Disease and treated the patient correctly. Kotler then requested payment for his out of pocket expenses. He sued and the trial court ruled for PacifiCare. The Court of Appeal reversed due to the long wait and sending the patient to a specialist who only saw their patient one day a week. The length of time represents a triable issue that should go to trial. It seem that PacifiCare should just pay the man instead of going to trial. Top
US v St. Francis Hospital
Settlement
St. Francis Hospital in Hartford, Conn. is one of the first hospital in the country to pay a fee for charging more than allowed when they give vaccines. Currently only Connecticut hospitals are being investigated but this could soon change to the rest of the country. In this case St. Francis paid $300,000 which is double the amount of the alleged violations. To date $1.8 million has been returned to Medicaid and an additional $3 million to private insurers.
US v Tenet
Mistrial
The jury in the case of illegal recruiting alleged by the Government against Tenet Alvarado Hospital could not come up with a verdict. The judge has declared a mistrial and the Government must decide whether or not to re-try the case. The lead Defendant had already pled guilty and the defense rested without putting on any case.
The Government has decided to retry the case. They have to wait until the judge rules on the former trial whether or not to allow Tenet it's request for a directed verdict of acquittal. Top
Plantation Gen. Hosp. v Horowitz
Florida Dist. Ct.
In a med mal case the physician on the hospital staff did not abide by the rules and carry liability insurance. The plaintiff sued the hospital for not catching the problem. The Court stated the hospital is not liable as their is no private right of action for the physician's failure to comply with the State law. Case dismissed.
Sperger v Siller
CA Ct. App.
In California, there is a lasw that allows practitioners to put into place arbitration contracts if they have the requisite language and opt out clauses. It turns out there must also be an "open book" account. This means there must be a contemplation of future services between the patient and the practitioner. Here the plaintiff had an acute back injury and saw the defendant chiropractor on an emergency basis. The chiropractor collected his fee after the treatment and also had the patient sign an arbitration agreement with all the necessary verbiage. Two years later the plaintiff saw the chiropractor again but for a shoulder and cervical disc problem. There was an alleged injury and the plaintiff sued. the chiropractor sued for arbitration and the lower and court of appeal denied the arbitration. There was no open book account. There was no ongoing communication between the two and there was no nexus between the problems. To trial. Top
Chadha v Charlotte Hungerford
Hosp.
Conn. Supreme Ct.
The hospital contacted the State Medical Board impaired physician division after other physicians in the hospital swore statements about the psychiatrist's ability to practice safely. The Board ordered a summary suspension until an investigation could be carried out. The hospital then issued a statement to the National Practitioner Data Bank. The physician sued the hospital for a false report. The Courts ruled that the proceedings of the Medical Board were quasi-judicial and therefore they have absolute immunity.
Ayash v Dana-Farber
Mass. Supreme Ct.
The physician sued the hospital for all the usual elements after being up for peer review and the contents leaked to the outside. The Court stated there is no right of action by a physician against a hospital for the intentional leaking of true information. The physician could recover for retaliation without any cap but not bad faith. Top
Schindler v Schiavo
Fla. Circ Ct.
The Schindler's continue to attempt to find a judge that will either remove Mr. Schiavo as the legal guardian for his wife or will allow an injunction against the feeding tube being pulled. This has already gone to the Supreme Court and they refused to hear the appeal. The new argument that will also lose is that Mrs. Schiavo is a Roman Catholic and would not want to go against the new edict by Rome on pulling feeding tubes. The other new idea is that there was insufficient counsel at the 2000 hearing. Yet another ploy is the new advances that hold promise for the brain damaged as seen in the Kansas woman who spoke after 20 years in a coma. These will all lose since they are either speculative or not as important as the right of guardianship. Mr. Schiavo has decided to allow the tube to be pulled. The Court said it will allow it in three weeks. This gives the parents the opportunity to go back to court on the above grounds. Let us not forget the initial cause of the ordeal was Mrs. Schiavo herself when she caused a severe chemical imbalance due to starving herself and the lack of a document by her telling her wishes. The other part of this soap opera is the disposition of $1 million that she won in a medical malpractice case.
Ashcroft v Oregon
US Supreme Court
The US Supreme Court has agreed to hear at its next session starting in October a challenge to the Oregon physician assisted suicide law. The lower court stated that the government can not sanction physicians for prescribing overdoses under the Death with Dignity Act. Top
Abraham v Intermountain Health
D. Utah
The optometrists sued Intermountain since they were all kept off the health plan in favor of ophthalmologists. The Court said the plan can limit its provider panels. Top
OIG
In the past month the OIG has allowed multiple gainsharing agreements between physicians and hospitals. Most are between surgeons and hospitals and allows the surgeons to participate in any savings that the hospitals receives by standardizing their equipment. Top
US v Wexler
Guilty
Dr. Wexler of Manhattan, N.Y. has been found guilty by a Federal court of illegal narcotic conspiracy resulting in a death. He also billed Medicare almost $500,000 for surgeries he never performed. He paid the "patients" for their cooperation with either money or prescriptions for narcotics or other controlled substances. In one case he prescribed multiple substances to a "patient" who was found dead from an overdose of the meds that Dr. Wexler prescribed. 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.