March 1 2007 Recent Legal News

Peer Review







Executions and Abortions


Peer Review

Reed v Franklin Parish Hosp

Dr. Reed was summarily suspended for what the hospital stated were reasons of patient safety.  The Court agreed stating that a post suspension hearing is permissible if the public safety is involved.  This was on summary judgment.

Jenkins v Methodist Hosp. of Dallas
5th Circ.

Some physicians never learn.  Dr. Jenkins, a black cardiologist, was working in the hospital cardiac cath lab for about six months when the employees began complaining about a hostile working environment due to Dr. Jenkins.  The physician had his cath privileges suspended by the administrators and eventually by the Board without medical staff intervention.  Later the Board changed its mind and stated that the physician can retain his privileges but had to attend a psychological evaluation and treatment, acknowledge the hostile environment and apologize both in person and in writing to the employees along with monitoring of the privileges.  The physician asked for and received a medical staff hearing.  The hearing said he should not have been suspended and that a NPDB report should be voided.  The Board did as the hearing panel asked.  Now Dr. Jenkins was back to basics without any of the onerous requirements.  What did he do?  He sued the hospital on a discrimination issue.  He, of course, lost the case and hopefully alot of money since it was appealed and he lost again.  He should have been just happy to be vindicated by the medical staff. 

Taylor v Christus St. Joseph
5th Circ.

 Dr. Taylor lost his privileges for a medical quality reason and sued under the antitrust act.  He alleged that a competitor and the hospital conspired to get rid of him.  Prior to his losing his privileges, Dr. Taylor had two malpractice suits and had been rejected as an approved physician from a federally funded health insurer.  He lost since he did not allege harm nor decrease in patient costs due to his being present. There was no shortage of GI physicians and the allegation that the competitors might engage in monopoly pricing was speculative and not enough to carry the suit. 

Allen v Woodford
ED Ca.

 There is an investigation into alleged mistreatment of prisoners in the California prison system.  One of the requested documents was a peer review document.  The court stated that there is no federal peer review protection.  

Med. Protective v Pang
D. Ariz.

A medical malpractice company wanted to reduce the policy limits of one of its insured wanted peer review records from a hospital.  The hospital refused stating they were protected.  The company then sued for the information.  The courts said it was protected against all third parties unless their was a waiver.  The company said the hospital waived since it required med mal insurance.  Ingenious, but wrong.   

Lindsey v St. John Health
Mich. Ct. App.

 A patient sued the hospital for intentional infliction of emotional distress.  The patient claimed the hospital wasn't nice to the patient.  The court said the conduct, even if true, did not rise to the outrageous conduct necessary and the requested occurrence report was protected. 

Towlin v Cedars Sinai
Ca Ct. App.

Dr. Tolwin was summarily suspended by the hospital.  He appealed to a hearing committee which found that he should be reinstated and monitored.  The case went back to the MEC who recommended against some of the recommendations.  The Board affirmed the MEC version.  The physician appealed to the state court and lost and then appealed to the court of appeal.  He lost again and the opinion is unpublished so can not be used as precedent. The Court found that the use of the MEC getting a second bite of the apple without the same given to the physician until the Board was legal and non discriminatory.  This is another example of why the bylaws need to be scrutinized for fairness.        Top


Merlin v Kaiser

David Merlin, was hired by Kaiser to be the administrative director of is ill fated transplant program.  Merlin immediately recognized the program for the sham that it was and blew the whistle to the state and feds.  He was fired after eight weeks into his job.  He sued for wrongful termination and for $5 million.  An arbitration was held and then a private settlement was reached.  To me,this meant Kaiser lost the arbitration.  

Baptist Health v Smith
8th Circ.

A physician had a loan agreement with the hospital.  The physician failed to keep his end of the agreement and the hospital looked to the physician's surgical group for repayment.  The group had sent a letter to the physician stating that he would not be responsible for any loan repayment.  The lower court stated that the letter was a guarantee and that the writer was liable to the hospital.  The Circuit disagreed in that a three line letter was not an agreement since it never stated that the writer was the guarantor.  

Schwartz v Novant

Dr. Lauren Schwartz has filed a sex discrimination law suit against Novant Health.  She claims that she was fired for being female.  The Health System says she lied about her credentials when she was hired.  She worked at the hospital for just over a year and claims that during that time she complained about the quality of care at the hospital.  The system states that the physician put on her application that she has a cerebrovascular fellowship from 1996 to 1998.  The hospital states that the physician was placed on probation and never finished her training.  She spent most of it in a non-technical research position. 

Town Hall Estates v Winters
Texas Ct. App.

An employee reported a possible incident of sexual abuse and was soon terminated.  She sued and in the jury trial won $3100 for lost wages, $20,000 in compensatory damages and $34,000 for attorney fees.  The jury also found that the nursing home acted with malice, Winters was also entitled to $20,000 from each administrator and $200,000 against the owner of the nursing home.  The Texas Court of Appeal reversed the case against the owner but kept it for the rest since the owner was protected by the corporate veil.  

Moses v Howard Univ.

In a summary judgment proceedings, the court found that the plaintiff showed a prima facie case of racial discrimination.  This meant the case could go ahead. 

Segan v Buchanan Hosp.
 WD Va.

A physician sued for antitrust conspiracy against several staff physicians and the hospital to terminate his employment.  The Court granted summary judgment to the defendants since there was no evidence to support the claims.  The physician was going to get the evidence during discovery but the current proof is only allegations.          Top


US v Dao

Nine physicians and six board and care administrators were indicted for healthcare fraud.  The physicians were Truc Dao, Gershon Hepner, Alexander Rivkin, Ramin Sarshad of the LA area and Drs. David Asher, Michael Chapman, Xinming Fu and Paul Lessler of Orange County. They are accused of enticing elderly and mentally ill patients to have medically unnecessary tests and billing Medicare for these tests. 

US v American Inst. of Allergy

The government has arrested John froelich, RN for healthcare fraud.  Others include Drs. Edgar Vargas, Oranu Ibekie, Harley Thomas and Robert Tully.  The scam was telling patients that they were getting free allergy tests including blood tests. In fact, they billed all the patient insurances. The blood was never sent in until the insurances had paid and some were too old to be of value.  

US v Igbokwe

 Kennedy Igbokwe, the owner of a medical supply house was convicted of Medicare fraud and sentenced to prison for five years and three months without parole.  Two physicians gave patients false prescriptions for equipment and Mr. Igbokwe either gave inferior equipment or no equipment and billed for the expensive equipment. 

Heartland Spine v UnitedHealth

Heartland Spine has an antitrust case against the area hospitals and insurers in the Kansas City area.  The Spine group has come to a settlement with one hospital and UnitedHealth to allow care of their patients. The trial will start soon for the remaining defendants.        Top


LA v Hollywood Pres. Med Ctr.

There are some hospital administrators and lawyers who probably can not tie their own shoes.  Here are two.  The hospital has been accused of two episodes of illegal patient dumping of a patient in skid row.  During the investigation the DA has gotten permission from the patient that was witnessed by two others to obtain the medical record.  The hospital is now stalling wanting verification from the witnesses.  The bad publicity for the hospital will continue with these stalling actions and only make the DA and the public more outraged.  Truly stupid.        Top


Sigman v Blue Shield

Justin Sigman and his wife applied for and received health insurance from Blue Shield.  Six months later he became ill with vomiting and needed hospitalization for dehydration.  Blue Shield received a bill for $9000.  They then re-looked at the application and found that he had omitted having several bouts of diarrhea in the past.  They then dropped the insurance stating that if any omission was made on the form, even if unintentional, they could revoke the coverage.  They are now being sued by many individuals for this.  The California Department of Insurance is also looking into the case as they did with Kaiser which was fined $200,000 and also with Blue Cross.          Top


Williamson v Amrani
Kansas Supreme Ct.

The high court ruled that the states Consumer Protection Act included physicians.  The wording is such that it is for all professionals.  The patient sued when a surgery did not do as the physician promised.  The physician also told the patient that he had alot of success with the surgery when in fact he did not.  

S. Baptist Hosp. Fla. v Ashe
Fla. Dist. Ct.

The patient sued the hospital for ordinary negligence and the hospital wanted it characterized as med mal.  The patient claimed the hospital discharged her without any clinician approval and against state law.  The court stated that it was ordinary negligence since there was no professional judgment involved.

Reigelsperger v Siller
Ca. Supreme Ct.

A patient saw a chiropractor and signed an arbitration agreement.  Two years later he returned for a different condition. The initial condition was low back pain which improved.  Two years later he had cervical pain.  The patient was not satisfied and sued.  The issue was if the original arbitration was still valid.  The high court said yes.  The main reason was the arbitration contract was drawn in accordance with the state law and the patient never attempted to cancel the agreement. 

Edwards v Lee Memorial Hosp

Edwards was brain damaged at birth allegedly from med mal by the hospital in Lee County, Florida. The jury awarded $30 million in damages against the non profit special taxing district hospital.  The case now must go to the legislature at its next session to either allow or disallow the damages.  The non profit status gives a cap on damages unless it is overridden by the legislature.

Meyers v National Healthcare
Tenn. Circuit ct.

Meyers sued the nursing home for negligent care and won a jury verdict of $29 million in punitive damages.  the judge set that aside but kept a $163,000 punitive award against the nursing home as well as $4.1 million in pain and suffering.        Top


Buser v Raymond
8th Circ.

Dr. Buser had a charge against him by the Nebraska Medical Board.  Dr. Raymond was the Chief Medical Officer of the Board.  A hearing was held without Dr. Raymond in attendance.  Following the hearing a summary was given to Dr. Raymond and there was some limited restriction on Dr. Buser by Dr. Raymond in his capacity as CMO.  Dr. Buser sued stating that an absentee judge cannot levy a discipline.  The courts all found that Dr. Raymond was entitled to absolute immunity and the case went bye bye. 

California v Kim

The California Medical Board is investigating Dr. Thomas Kim of Los Angeles for having an affair with a patient and radiologist, Dr. Jo-Anne Biafore, now of Georgia.  She sued and won a confidential settlement which was reported to the Medical Board.  The Board states that 26 physicians were disciplined in the last fiscal year for sexual misconduct and 17 lost their license. 

North Dakota v Hsu

In an interesting case, Dr. Hsu had his medical license revoked in 2004.  The unlicensed physician had two medical clinics at that time.  One closed and the other one is still open.  Dr. Hsu has hired other practitioners including physicians to man the clinic.  Dr. Hsu has no part in the medical care of anyone in the clinic.  The Medical Board is now going after the physician for running a clinic without a medical license.  One judge has ruled that only a medical licensee can maintain a medical clinic.  That is being appealed to the Supreme Court.  Dr. Hsu only comes to the clinic several hours a month to pay bills and collect mail.     Top

Executions and Abortions

All executions in North Carolina are now at a halt.  A federal judge has decreed that a physician must monitor the lethal injection procedure to make sure the patient is not in pain during the injection.  The State Medical Board has threatened the license of any physician that takes part in an execution. 

Evans v Maryland
D Md.

A federal judge has put on hold any attempt by the state to recruit a physician to participate in an execution.  The basic question is whether an execution is a medical procedure requiring a physician or not.

A Federal Court has allowed California to sue the feds against the Weldon Amendment.  There has been a conscience clause in place that applied to individuals for several decades.  This allowed individuals not to perform abortions.  The Weldon Amendment extended this to health plans and hospitals.  Under the Amendment those institutions that decide not to perform abortions can lose federal funds.         Top


Taus v Loftus
Ca. Supreme Ct.

Loftus, a psychologist, researched an old case on repressed memories.  By reviewing old court records, he found the name of the child and contacted her mother for an interview. He lied to the mother stating he was the superior of the original psychologist in order to obtain the interview.  The high court ruled in a 5-2 decision that the plaintiff could sue the therapist for invasion of privacy.        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.