March 1, 2015 Recent Legal News







Peer Review and Employment


Patients v Kaiser
To Be Filed

Kaiser Kona Hawaii reports a 6600 patient security breach due to a box that fell out of the back of a courier.  The prescriptions were expired but some may have had SS numbers attached.        Top


Connelly v Williams

Michael Connelly, the CEO of Cincinnati's Mercy Hospital has sued the SEIU and its president Mary Williams for invasion of privacy and defamation.  They are in the midst of a labor dispute and the union has accused publicly Mr. Connelly of getting rich off of the sick, disabled.  They are also calling him greedy and listing his telephone number.  Let's hope he wins.

Center for Investigative Reporting v California
California Supreme Court

The state high court has ruled that the state can not hide from the press all information except patient names when they ask about documented abuses in the state's long term care facilities for the mentally ill and developmentally disabled.  In the past they have given reports that are so heavily redacted that no one could figure out what happened. There were two conflicting laws and the state went with the older and the court went with the newer.

Lemaire v Covenant Care California
Ca App

The daughter of a deceased patient sued for med mal and violations of patient rights for failure to maintain accurate medical records.  The jury found for the defendant in the med mal arena but awarded the daughter $270,000 for the medical records violations plus $26,527 in costs and $841,000 in attorney fees.  The appellate court said the patient does have a private right of action to sue for inaccurate medical records but stated that the statute only allows $500 per lawsuit not per violation plus attorney fees.  They sent the case back for redetermination b the trial court.

Daughters of Charity v SEIU

The Daughter's of Charity have six hospitals going bankrupt and have reached a deal to sell them to Prime Healthcare.  The union does not like Prime since they are non union hospitals and did all they could to scuttle the deal including attempting to have the California AG not approve the sale.  The AG did approve the sale but with onerous conditions and now Prime is reconsidering the deal.  The Daughter are suing the union for using extortion tactics to interfere with the sale.  SEIU had said they would not interfere if Prime would be neutral in the union activities.  Prime told them rightfully to go pound sand.


Oregon v Oracle

Oregon Obamacare has to be the worst one in the country.  Last year they signed up virtually nobody and sued Oracle claiming it was their fault.  Now they are suing them again because they are ending their contract at the appropriate time.  This leaves the state in a bind as they use the software for all their Medicaid signups.  Oregon this year moved to the site but still uses Oracle for their Medicaid state signups.  Oracle claims in their counter suit last year that Oregon owes them$23 million.  It seems that Oregon is screwed.  Oregon is now dropping their entire Covered Oregon program.  The judge ordered Oracle to continue to host the state Medicaid system for another year.  

ARC of California v California
ED Cal

The court decided that the Medicaid reductions by the state to the developmentally disabled were against the law.  By making the reductions the state was not insuring that there would be enough providers to care for the patients.  This is the same argument that was rejected by the state courts on the general Medicaid reductions.

Danyelle v Krall
To be Filed

Danyelle has lifelong fibromyalgia and has a service dog.  She states she called Dr. Michael Krall's office two months in advance of her appointment for allergies to make sure it was OK to bring the dog.  She states she was told it would be OK.  When she arrived the physician apparently started yelling at her to get the dog out of the office even though it was a marked service animal.  He sure doesn't know the law and may have to pay her money for that error.

Judicial Watch v SHOP
DC Court

A federal judge said Congress had the right to make a law exempting themselves from the onerous Obamacare insurance plan.          Top


US v Golding

Dr. Devon Golding of St; Louis was convicted of healthcare fraud for billing for services not rendered and making false statements.  His RN took the exam several times to become a nurse practitioner and failed each time.  She told Golding that she failed but he allowed her to do NP things and covered for her.

US v Patel
7th Circuit

The circuit court ruled that just signing form 485 authorization was enough to trigger the anti kickback section.  Dr. Patel was paid for each authorization slip he signed for needed home health services even if the patient did not choose the paying service.  Patel's conviction was upheld. 

Aetna v Cypress Medical Center

Aetna has charged the Texas hospital and it's CEO Robert Behar with fraudulent billing.  They say the hospital has given kickbacks to physicians for referrals and grossly inflated billings. They also accuse the hospital of forgiving routinely their members billings.  This means that Aetna's members go there for care and are charged out of network charges which ar higher than if they went to an in network hospital.  

North Carolina Board of Dental Examiners v FTC
US Supreme court

The high court ruled that the dental board, and as an extension all boards, could be sued for antitrust violations when the state is not actively supervising the boards and the members are self interested parties.  In this case the dentists were miffed that non-dentists were doing teeth whitening and charging less.  They forbid non-dentists from doing the whitening and the FTC charged them with antitrust.  They defended saying they were a state actor and immune from antitrust.  The federal courts did not agree with the board.

US v IPC Hospitalist Company
N Ill

The court found in summary judgment that the feds pled enough to allow the case to go forward but not against the subsidiaries and affiliated hospitalists and medical groups.  The whistleblower physician worked for the group and alleged that the group billed higher episodes of care than what was actually done.  The fed alleges that the organization encouraged upcoding by the use of dashboards that showed how frequently the physicians billed the higher codes.  I see a settlement in the winds.        Top


Patients v UCLA
To Be Filed

Up to 179 patients a UCLA Ronald Reagan Medical Center were exposed to Carbapenem-Resistant Enterobacteria (CRE).  Two patient may have already died due to the infection.  This was transmitted vial two endoscopes used for biliary procedures.  The hospital states the instruments were sterilized according to the manufacturer's instructions.  The CDC has but out a bulletin on duodenoscopes warning about the sterilization problems.  The FDA is not going to remove the scopes from circulation.

Freedman v Fisher

In another case obviously filed by an attorney that doesn't get it, the patient died after being seen in the ER and sent to another area of the hospital for observation.  The suit was for medical malpractice and EMTALA.  The court said the EMTALA violation was no good since he was not discharged from the hospital when he went to observation.  

Knox v Alta Bates Summit Medical center
Ca Ct App

The court upheld a $375,000 judgment against the hospital for negligent infliction of emotion distress.  the suit charged that the sister and daughter of the patient watched the patient choke to death while they waited for a physician to arrive.  This occurred post op thyroid surgery and the hospital did not deem it urgent.  

Baney v Fick

I am sorry this case did not go farther so the attorney could lose more money.  The patient during an elective procedure had her esophagus injured.  The patient and his wife found an attorney that did not do his homework.  He sued for EMTALA since when the injury occurred he was not transferred to another more appropriate hospital for care in a timely manner.  The court rightfully tossed the EMTALA case since he was already a patient in the hospital and this is not a federal malpractice action.        Top


Connecticut v Patel

Rashmi Patel, DDS was indicted for criminal negligent homicide for the death of a woman while under conscious sedation.  He was pulling 20 teeth and doing two implants.  He is accused of ignoring warning by his staff about the low oxygen levels and continuing on with the procedure.        Top

Peer Review and Employment

Elkharwily v Mayo Holding Co.
D Minn

The hospitalist was fired for patient safety reasons and he sued stating he was fired for retaliation for whistleblowing.  The court said his accusation did not rise to the level of protected activity and he did not prove any fraud.  Now he's just fired and poorer.  When will physicians learn not to bother to sue, it is a money loser.  Instead work to resume your career.

Uche v St. Lukes-St. Vincent's Healthcare
MD Fla

In another loser, the hospitalist was fired for huge numbers of complaints from nurses.  He sued for retaliation and racial discrimination.  The court said he was treated the same as anyone else and has no claim.

Belnap v Iasis Healthcare
D Utah

This case is different from the preceding two as it involves business and not just employment.  The system signed a letter to develop an abdominal treatment center and all disputes were to resolved through arbitration.  Shortly after the agreement, the physician was accused of sexual harassment but was vindicated by the peer review committee.  The hospital never developed the agree abdominal center.  The physician sued and the hospital countered with arbitration.  The court said that some of the physician's complaints regarding restrain of trade fell under arbitration but others such as violation of bylaws breach of the implied covenant of good faith were not covered by arbitration and could be litigated.  He then filed for an injunction to delay a second peer review hearing for his adverse recommendation for reappointment.  That was denied due to facts not originally presented and failure to exhaust all administrative remedies.

Sood v Graham
Iowa Ct App

The director of a university medical school nuclear medicine program revoked the privileges of a another physician.  The lower court stated that the physicians due process rights were violated when he was fired.  The court of appeal reversed stating the physician had no case since he did not take advantage of all the appeal rights offered to him prior to suit.  Since the physician had a multitude of post termination process it was not necessary to give him much in pre-termination process.

Willis v UPMC Children's

Nurse Willis was 61 years old and written up three times in a five month period for cursing around patients.  She was terminated and filed suit for age discrimination.  Wrong again.  There was a legitimate cause of action to fire her and she also did not prove any age discrimination since she could not prove discrimination just because a younger person replaced her.  

Hunt v Macon Ortho

A physician assistant claimed that an ortho subjected her to verbal abuse and harassment for three years.  After she complained she was terminated.  The court ruled that none of the acts she complained about were enough to sustain a cause of action taken as a whole they can constitute a claim.  The case continues.        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.