March 1, 2008 Recent Legal News


Peer Review

Fraud and Abuse





Woebse v Health Care Corp
Fla Ct App

The nursing home had a 37 page admission document that was signed by the patient's daughter.  In the document was an arbitration agreement.  The daughter accused the nursing home of violation of nursing home statutes after the patient died.  The nursing home wanted arbitration.  The daughter testified that the hospital in Ft. Meyers arranged for the transfer to the nursing home and that she met with the nursing home administrator for five minutes.  She testified that she was given the document and was told she had to sign it for her father to remain in the home.  The document was turned to the signature page and no mention was made of arbitration. The daughter never even got a copy of the document. The courts called the action unconscionable and tossed out the agreement allowing the family to sue.  

Ngai v Seaview Radiology
NY Superior Ct

The patient sued Staten Island University Hospital and the physician defendants for wrong mammography readings and poor surgical techniques of removing a lumpectomy specimen in two segments and not doing adequate markings.  The hospital was let off on summary judgment since the physicians were independent contractors.  The physicians need to stand trial.   

Riegel v Medtronic
US Supreme Ct.

The US Supreme Court in a 8-1 decision ruled that state lawsuits against a medical manufacturer whose product was approved by the FDA could not use a standard of care that was more stringent than the Federal one. 

Bowman v Kalm
Utah Supreme Ct.

The Utah Supreme Court has ruled that if something is in the realm of the common knowledge of the jury, an expert does not need to testify as to the causation aspect.  In this case a patient of a psychiatrist was given a large number of sleeping pills.  She OD and died.  The jury could infer without an expert as to causation.

Chau v Riddle
Texas Supreme Ct

 In an interesting case, a anesthesiologist was sued for med mal for intubating the esophagus of a new born by error.  The anesthesiologist was for the mother and when the new born has respiratory problems went to intubate when others failed.  The anesthesiologist went back to the mother and the neonatologist had to re-intubate the infant.  The infant had brain injury and the anesthesiologist claimed Good Samaritan defense.  In Texas, one of the exceptions to the Good Samaritan Act is if the physician is associated by the admitting or attending physician.  The high court stated there is an issue of material fact whether the anesthesiologist was associated with the attending physician as it may have been his duty as a part of the OB team to resuscitate the newborn.  The case goes back for trial on whether or not he had a duty to intubate and therefore not protected under the Good Samaritan Act.    

Patients v Hospitals

The families of those killed by Charles Cullen, a serial killer nurse, have reached a confidential settlement with the Sommerset Medical Center, Hunterdon Medical Center and Warren Hospital, the employers of Cullen for the 22 wrongful deaths of their relatives. The settlement came after a judge ruled the hospital opened themselves up to liability by not reporting Cullen's improper behavior to the authorities. 

Columbia/JFK v Sangounchitte
Fla Dist Ct App

 In a med mal case against a physician and the hospital for negligent credentialing the hospital lost $10 million.  The physician had inserted a rod into the cervical spine of a patient that migrated to the brain and caused injury.  The physician had no privileges to do the procedure, never was eligible to apply for the procedure and never had to show proficiency in doing any procedures.  The $10 million verdict stood.  

Rathje v Mercy Hosp
Iowa Supreme Court

 Iowa's Supreme Court ruled that the statute of limitations in med mal cases would start when patients know the extent and or cause of their injuries not when they were originally diagnosed.  The Court went on to state that lawmakers were free to change the interpretation if they desire.  There was no ruling on the merits of the case.  This overturned a prior Iowa Supreme Court case on the same issue.

Sutherin v Magiler
Penn Jury Trial

Sutherlin went to Magiler and Fox Chase Cancer Center for a mammogram.  She had had a previous breast reduction and bloody nipple discharge.  Neither of these were noted on the intake at the Center.  The mammogram was read as showing a dilated duct unchanged from two years before.  There was no dilated duct mentioned in the report from two years prior.  The following year the patient had another mammogram at Albert Einstein and read by Dr. Summerton.  This also was misread and the hospital and physician settled prior to trial for an undisclosed sum.  The patient had a Stage IV breast cancer which is terminal.  Pre-trial the plaintiff demanded $2 million.  The defendants offered $125,000.  The jury came in at $12 million and the plaintiffs had warned the defendants pre-trial that the verdict may be well over their policy limits.  Unless the judge offers a remitter, the Clinic and the physician will both be broke.   

Rumage v Bergman 
WD Texas

Rumage sued Humana for multiple state tort infractions including wrongful death and negligence.  The HMO defended by stating the MMA preempted the suit.  The federal court denied the HMO argument.  The case will go to trial unless settled quietly.          Top

Peer Review

Egan v St. Anthony's Med Ctr.
Missouri Supreme Ct

Egan, a surgeon, was summarily removed from the staff after doing a partial colectomy on a patient against the advice of a gastroenterologist and a report by a psychologist stating he had a neurological disorder.  The hospital abandoned the neurological decision prior to the appellate hearing.  This was again raised in the appellate hearing by the chair of the committee. He sued for reinstatement due to not following of the bylaws.  The Supreme Court stated that in Missouri the medical staff bylaws are not to be considered a contract between the hospital and the individual physicians and physicians may not seek monetary damages for breach of contract.  The Court went on to loosen their prior ruling  that private hospitals in the state may not be challenged and they went with 46 other states that have ruled that hospitals that do peer review may be challenged in court for their bylaws not being followed but the merits of the  privilege removal can not be challenged. This leaves Iowa, South Carolina and Oklahoma as the only states that still rule hospital judicial decisions may not be challenged. The case was remanded to determine whether or not the hospital followed its own bylaws when the appeal committee heard evidence not heard earlier.  

Johnson v Riverside Hosp.
9th Circ

Johnson is a Black bi-sexual physician who worked under a contract with Riverside Hospital.  He was removed from the staff for non payment of dues and not readmitted due to complaints about him to the Medical Board of California.  He sued claiming discrimination.  The hospital won summary judgment and Johnson appealed.  The 9th Circuit ruled that Johnson only noted two incidents of racial discrimination by physicians over a 28 month tenure.  He showed that the nurses treated him with animus but could not show it was due to discrimination.   

Merrill v Agnesian Health
ED Wisc

Merrill accused Agnesian's Hospital St. Agnes of denying him privileges due to his being an osteopath and not a medical doctor.  This is illegal is Wisconsin.  It is in federal court because of diversity of citizenship.  The case involves the hospital's assertion that he was approved but there was only a delay.  The court denied the hospital's motion for dismissal.  Due to the delay in giving Merrill his privileges, the group that recruited him rescinded the offer and Merrill suffered money damages.  This allows the two sides to continue the suit with discovery.

St. James Healthcare v Cole
Montana Supreme Ct.

The Montana Supreme Court upheld but modified a restraining order against the Radiologist.  The original order was to keep the physician from harassing employees or potential new radiologists.  The Court ruled that the order was too broad and a restraint of free speech. The Court allowed the physician to tell patients, prospective patients or physicians that the hospital or new radiology services were  inadequate.

Johnson v Christie Spohn
SD Tex

Summary judgment was granted to the hospital after the physician was summarily suspended and then went through peer review proceedings.  The Court went through the four steps in HCQIA and stated that the hospital complied with each and every one.  The Court also stated, wrongly in my opinion, that the physician was not entitled to notice and a hearing after a summary suspension no matter how long it was for due to the medical staff leadership belief that the physician was an imminent danger to the patients.

Konvalinka v Chattanooga County Hosp
Tennessee Supreme Court

The Supreme Court basically stated the public hospital had to release information regarding a physician under the Freedom of Information Act.  The above physician was suspended after an altercation with another physician.  The affected physician's attorneys requested information on the other physician but that was denied and then stayed so an appeal could be done.  The physician's attorney then did an end around and requested the same information under the Freedom of Information Act and was cited for contempt of court for this action.  The Supreme Court reversed the lower court's action for contempt and that the attorney's Freedom of Information Act request was separate from the peer review request.  The physician's attorney was just smarter than the hospital's attorney.

Mawulawde v Bd. of Regents Georgia

After the US Supreme Court refused to hear an appeal of an 11th Circuit case that had allowed discovery of peer review materials in some lawsuits, the hospital made available the 25,000 pages of material and asked the physician to mark those pages that he wanted copied.  The court ruled that this was reasonable of the hospital to do and not copy the entire record. 

Catholic Health Initiatives v Gross
D Colo

 In a great study of what not to do, Dr. Gross was recruited for the hospital and then shortly after was involved in a peer review investigation.  He put in his resignation for several months in the future and after being asked if he was putting his disputed privileges in abeyance during that time changed his resignation to immediate.  He had an immediate change of heart and stated he wanted to take back his immediate resignation.  That was rejected by the MEC.  Dr. Gross never reapplied for privileges nor ask for a peer review hearing.  He was reported to the NPDB for resignation while under investigation and sued for money paid to him under the Recruitment Contract.  Dr. Gross countersued for the usual multiple claims,  Of course, Dr. Gross lost all his claims since he resigned and never asked for a hearing.  The court also gave the hospital its money due because of the resignation.  This should be a lesson to all physicians never to prematurely resign as you lose all of your rights.  

Estate of Blume v Marian Health
8th Circ

The hospital breached the physician's due process rights in not giving him a hearing after the removal of his privileges.  The court said that didn't matter since the hospital is immune from suit since it had in its bylaws absolute immunity for actions related to suspension of privileges.  There also was in the bylaws a right of due process.  The court chose to hear one and ignore the other. 

Kunajukr v Lawrence Hosp
D Conn

 The hospital terminated the part time employment agreement with the physician which also terminated his hospital privileges.  The physician sued the physicians on the peer review committee for being malicious.  He asked for several interrogatories and documents and were refused all.  The Court agreed with the non production except for the patient charts which needed to be under a protective order and returned to the hospital.        Top 

Fraud and Abuse

US v Ventura Community Hospital

The AMA had the story about the California hospital which at one time attempted to oust members.  The physicians had told the hospital board about illegal gifts, interest free loans and other illegal activity by the administration.  The new board, after the ouster of the old administration, investigated and self reported the abuses and has now paid $1.3 million in fines.  The hospital is now attempting to recover the illegal loans and below market rents given for kickbacks.  The gifts were of low value but many have been returned by the physicians.

Illinois v Carle Clinic

The Illinois Attorney General has re-filed charges against the Carle Clinic of Urbana and Christie Clinic of next door Champaign with conspiracy to force the state to pay more for Medicaid to the entities.  The entities state that they were working alone.  A judge has already dismissed the charges once.

US v Blue Cross of Mississippi
SD Miss

A whistleblower suit against the Mississippi Blue Cross organization was allowed to continue in a ruling by a federal judge.  The judge ruled that the insurer was not entitled to statutory immunity.  The whistleblower found fraudulent claims filed by Mid-South to Blue Cross and that Blue Cross processed those claims after being told of the fraud.  The judge stated that since the insurer's action was either gross negligence of fraud there could be no statutory immunity.  The court went on to state that there was a viable claim under the FCA.  

US v Community Health Systems

 The government has put a price tag of $27.5 million on the improper claims alleged the health system sent to the government for indigent care.   

US v Martineau

Former State House Majority leader Gerard Martineau, Democrat,  has been sentenced to three years in jail and fined $100,000 for federal corruption. He was convicted of using his position to help CVS Pharmacy and the Rhode Island Blues for profit. He was also in the business of selling material to the companies. Blue Cross has already paid $20 million in fines for their part.  Several CVS execs are up for trial soon.

US v Rogan
7th Circ

In the Edgewater Hospital debacle of 2001, six people were sentenced to prison.  The seventh person tried was on a civil charge and was fined $64 million. Rogan, the principal manager and financial beneficiary of the hospital, appealed the fine as too excessive but lost as it was only 4 times the actual loss.          Top


Los Angeles v Health Net

The City of Los Angeles has filed suit against Health Net for its illegal rescissions of policy holders if they file claims.  There will be a separate criminal investigation to see if bonus money was paid to individuals who rescind contracts. If found guilty in the civil matter it could cost the company hundreds of million of dollars.   

Bates V HealthNet

It's been bad for HealthNet and the insurance industry in California.  Now if the other states could also follow suit.  Bates, a cancer patient, was getting chemotherapy when the insurer cancelled her policy.  The insurer stated that the patient did not tell the truth on her application about her weight or heart condition, neither of which had anything to do with her cancer.  After the arbitration documents were released that showed HealthNet gave bonuses for canceling policies.  The insurer had to pay the patient $9 million.  HealthNet stated it would stop its illegal rescission policies until an external review process can be established to approve the cancellations.  Of course, under state law, they must prove the error was intentional, a very high burden. 

Calif. Realtors v Blue Shield
LA Superior Ct.

A judge ruled that Blue Shield was within its rights to cancel the insurance policy for the entire California Realtors Association while a law suit decided the issue.  The insurer stated that the organization had materially breached its contract by not signing up enough members to spread the risk.          Top


Columbia PT v Benton Franklin Ortho

The physician therapy company is suing the physicians for employing their own PT service.  They feel that the PT service should be independent of the physician.  They are using the Stark and kickback laws to make their point but will lose on this.  Both sides have asked the Court of Appeals to rule on this issue.        Top


Uintah Basin Med Ctr v Hardy
Utah Supreme Ct.

The hospital and the physician pathologist had a contract that he would be paid monthly for his services and either side could for cause sever the relationship with 90 days notice.  The hospital gave a 90 day notice so they could bring in a physician to do the pathology and work in the ED.  They claimed the business reason was the cause.  The pathologist said that was not true.  The court said it is a matter for the jury to decide so the case should go forward.

Davison v Bar Area Nuclear Med
Wisc Ct. App

The physician and the entity had a contract that contained a covenant not to compete.  The group's contract with the hospital was terminated and lost its major source of business.  The covenant was then worthless since it had no book of business to protect.        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.