March 15, 2005 Recent Legal News



Price Fixing

Disruptive Physician



Peer Review



Right to Die


California v Santa Rosa Hosp

St. Joseph's Santa Rosa Hospital in California has been fined by the state for a nurse giving the wrong patient diabetic medication.  The fine was the worst possible, $50,000.  The incident happened in the nursing home section of the acute care hospital.  This is the second fine for this "skilled" nursing unit.  The nurse did not notify the physician nor care for the patient after the error was obvious and led to the patient's death.  

In Wisconsin a pharmacist was given a letter of reprimand because he would not fill a prescription for birth control pills.  He also refused to refer the patient to another pharmacy where she could get her prescription filled.  Wisconsin has a "conscience clause" which allows one to follow their conscience or religious beliefs even if that conflicts with their job.         

In Ohio, a judge has ordered an attorney to pay a physician $6000 for continuing a law suit against him after there was no expert witness that stated he did medical malpractice.  The physician was dismissed just prior to trial but after there was a motion for sanctions.  The best part was the attorney had to travel from her home in Florida to Ohio to answer for the case.         Top


Tennessee v Tenn. Justice Center
Tenn. Dist. Ct.

The Governor is attempting to bring the huge costs of the faulty TennCare program under control and has removed about 500,000 people from the program.  This was after the activists filed suit to make TennCare more inclusive. The judge in a hearing two weeks ago stated that the Justice Center was necessary in this litigation due to the complexities.  This hearing is again to get rid of the Center due to a perceived conflict of interest.  In the meantime the Center is getting what it wants the money of Tennessee spent on this poorly designed program.  See Recent News.      Top

Price Fixing

US v Preferred Health Services

The government and Preferred Health Services, a 100 physician organization in South Carolina, have settled the price fixing allegation.  The allegation also included Oconese Memorial Hospital in Seneca, South Carolina.  The medical group was about 70% of the area physicians.  There was no admission of wrongdoing since it was using a messenger model.  The agreement was a consent order.

US v Hillcrest Healthcare

In a most unusual case the Feds and the State are both going against the defendants for a death in the nursing home in Connecticut.  They have gone after them for criminal and have convicted the Corporation of manslaughter.  They are now in the false claims arena settlement with the feds for between $500,000 and $1 million.  they have already settled with the state for $200,000.  The individuals involved are still being looked at for criminal charges.  This all stems from a person who's bedsores progressed dramatically while in the home.  This is just one of many citations for Hillcrest.         Top

Disruptive Physician

Doescher v Raess

Doescher, a former perfusionist at St. Francis Hospital in Beech Grove, Indiana is suing Dr. Raess, a heart surgeon for his disruptive conduct causing emotional distress.  The perfusionist apparently was told by the physician that his career was over and yelled and lunged at the perfusionist.  The perfusionist stated the stress made him depressed and he had to quit his $100,000 a year job.  The plaintiff states that Dr. Raess has a history of yelling at others.  When one looks at my paper on disruptive physicians on this site, the physician's actions are not protected.        Top  


Florida v Tenet

The Florida AG has filed suit against Tenet for racketeering.  Tenet is accused of improperly inflating their charges to Medicare by over $1 Billion.  The problem with the suit filed in Federal Court is that the Florida AG does not allege any of the Tenet Florida hospitals did anything wrong.  He is accusing the hospitals in Texas and California of wrongdoing and taking money away from the public Florida hospitals.  This may be a precursor to other states following suit. 

Patients v Tenet

Tenet has agreed to settle the multiple law suits against it for overcharging uninsured patients.  They have agreed to offer discounts to the uninsured and to rebate money to  some of the people who have complained.  Tenet had set aside about $30 million for this litigation.       Top


Nurses v California
Sacramento Trial Ct.

The California Nurses Union has won a court victory overturning the Governor's decision to delay the ill thought out nurse ratio bill.  The judge has decided that even though their is not enough nurses the provisions of the law should be upheld.  This requires an immediate change to a 1 nurse to every 5 patients and a nurse to be present to cover any ER nurses that go on break.  The state will appeal the decision.  What this means is hospitals will have to hire over two thousand traveling nurses at a huge expense or curtail services. See Recent Legislation.

Maryland v Thompson
Guilty Plea

A nurse in the Shady Grove Adventist Hospital has pled guilty for intentionally failing to care for five patients in the ICU.  The patients died.  The defense attorney for the nurse stated the reason for her shoddy care was being overworked by the hospital that understaffed the unit.  The hospital attorney surprisingly disagreed. It will be interesting to see what the jury decides in the later civil suits.        Top

Peer Review

Marmureanu v Lake
Cal. Ct. App.

One physician sued another for false statements in a peer review process that caused harm and interfered with his practice.  The other physician attempted to get the suit dropped as an anti- Slapp suit.  In California these suits have no standing in official proceedings.  the Court stated that peer review is not an official proceeding and the case may continue.

Unnamed Physician v Enloe Med Ctr.
Cal Ct. App.

A plastic surgeon had his hospital privileges removed after being accused of sexual harassment of patients.  The physician stated the accusations were hearsay and should be excluded.  The Courts disagreed.  Hearsay is admissible in peer review hearings as long as it is relevant.  The court also state that the distribution of the hospital's evidence prior to the defendant presenting his evidence was not prejudicial. 

Lee v Hosp. Authority
11th Circ.

This case occurred in Georgia.  Lee was up for his two year reappointment.  It was discovered that another hospital had suspended him for a short time and had put him on probation.  The hospital then sent Lee's cases to an outside reviewer who found the percentage of complications outside of the statistical norm.  Lee then resigned and was reported to both the Medical Board and the National Practitioner Data Bank for resigning whil under investigation. Lee sued the hospital for not following its own bylaws.  The court and the appeals court both gave summary judgment to the hospital.  The hospital did not arbitrarily revoke any privileges and was within their right to conduct an investigation.         

Braswell v Haywood Med. Ctr.

Dr. Braswell was a solo practitioner and the hospital paid for a recruited surgeon.  Soon after the other group in town also recruited another physician.  Dr. Braswell wrote the new physician stating that if he came that the population density requirement of the State.  He did not come and the hospital chastised Dr. Braswell.  Soon after Dr. Braswell had a complication in a gastric bypass surgery.  The hospital issued a moratorium on the procedure and three days later lifted the moratorium for the two surgeons competing with Dr. Braswell. The physician appealed and was denied.  Then the MEC summarily suspended him.  The MEC voted not to change their recommendation to summarily suspend and the doctor appealed.  The Fair Hearing panel agreed with him but the MEC would not accept the fair hearing panel's report.  The Board then affirmed the suspension.  Dr. Braswell was then reported to the Data Bank and the Board.  A second hospital then denied his recredentialing and also reported Dr. Braswell.  Dr. Braswell then sued all and the defendants moved to dismiss.  The District Court allowed the federal and state claims to go forward except for the tortious interference claim.  They found the hospital had competitors on the committees, that his letter was protected speech, the plaintiff could prove personal bias.  The process was flawed so absolute immunity did not apply and there was no qualified immunity nor HCQIA protection for the federal cause of action.  It seems the hospital ought to retract their reports and reinstate the physician plus pay him all expenses and lost income or potentially lose really big in court.  The physicians on the MEC are also not protected.   

Troescher v Grady, MD
Penn. Super. Ct.

The plaintiff sued Grady for med mal and attempted to get peer review and credentialing files.  These the court states are confidential under HCQIA and the state peer review act.

Tonsekar v Downey Med Ctr.
CA Ct. App.

The surgeon was summarily suspended after an alleged surgical error injured three patients.  The summary suspension was upheld by the MEC and upheld again on Fair Hearing.  The Board Appeals Committee by a 2-1 vote reversed the Fair Hearing Panel and stated the surgeon made no surgical error that started the process.  The recommended to the full Board the reversal of the summary suspension.  The full Board decided to continue the summary suspension.  The surgeon claimed procedural violations but the court said there was enough evidence to sustain the summary suspension.        Top   


Wellspan v Bayliss
Penn. Super. Ct.

A perinatologist quit after several months and the hospital attempted to enforce a restrictive covenant.  The restrictions was for the three counties around the hospital and the physician could not recruit any past or present patients of the hospital.  The court invalidated the covenant as unenforceable due to the large area involved and the inability to recruit the patients.  The hospital needs new counsel. 

Physicians v HHS

In an expected verdict the federal judge tossed a case against the HHS under Clinton that all physicians and hospitals that receive federal funding must provide translation services to their patients.  This  is the second of these suits to be dismissed early on.    

Comprehensive Psychology v Prince 
NJ Super Ct.

Prince was an employee of Comprehensive and left.  there was a restrictive covenant stating that the employee could not practice within 10 miles for two years. There was also a rule of the New Jersey Psychology board that there can not be a restrictive covenant that restricts the right of the employee due to continuation of therapy.  The Superior Ct. held that since there was a special regulation that there could be no covenant. 

Navickas v Unemployment Comp. Bd. 
Penn Supreme Ct.

Navickas was a new graduate and a staff nurse at Children's Hospital of Philadelphia.  She made an error and then made another.  After the second one she was told to quit or be fired.  She quit and applied for unemployment which the hospital fought.  The end result is that since her acts were unintentional that she was entitled to unemployment benefits.  The nurse did not perform willful misconduct that would have negated any benefits. 

Nunez v Temple Prof. Assoc.
ED Pa.

Dr. Nunez, a 65 year old working at Temple when he was dismissed and replaced by a younger physician.  He sued on breach of contract and age discrimination.  The employer was granted summary judgment on the contract but not on the age discrimination.  They stated it was the policy to only hire Board Certified and Board Eligible people as the reason for the dismissal.  They happen to have many others who are not either certified or eligible and therefore it was a sham excuse.  They also had no written policies regarding only hiring board eligible or certified physicians.        Top


Reyoso v Newman
Ca. Superior Ct.

Reyoso is a mentally disabled man who underwent a dental procedure under general anesthesia.  In the recovery room of the ambulatory surgical center he had problems with low oxygen saturations and the dentist called a friend with hospital privileges Dr. Newman to admit Reyosa.  Dr. Newman came to the surgical center and evaluated Reyoso and agreed.  A year later Reyoso sued all including Dr. Newman stating the delay in treatment caused worsening of his mental problems.  Dr. Newman asked the court for dismissal due to the California Good Samaritan Law.  The Court ruled that even if Dr. Newman did not know this was an emergency, he voluntarily was rendering emergency care and therefore should be dismissed.  This is the California law.  The law may be different in different states.   

Ferdon v Wisconsin Compensation Fund
   Wisconsin Supreme Ct.

The Wisconsin high court has agreed to hear this case that centers on the  enacted caps on med mal cases. The cap was set at $350,000 for non economic damages in 1995 and is now at $423,000 due to inflation.  The plaintiff are also contesting the placing of any money for future medical expenses in a fund for the benefit of the injured patient.  They want the money now.  The lower courts had rejected the plaintiff claims.  There was a prior case that stated the caps were legal but it was in a death and not an injury case.  It does not make sense why there should be a difference.   

Patients v Brigham & Woman's Hosp.
To be Filed

A nurse at the hospital gave ten times the dose of Tylenol to two newborns.  To date there has been no injury but it can damage the liver.   The dose given was 4.0 cc of the medication instead of 0.4 cc. The same mistake was in the discharge instructions for the baby.  This hospital has computers to prevent medication errors.  The unit in the nursery has not yet been installed.  

Dees v Billy
9th Circ

When Dees first saw Dr. Billy in his office he signed an arbitration agreement.  After he was injured during a surgical procedure he sued Dr. Billy for med mal.  Dr. Billy moved to compel arbitration.  This was opposed by using adhesion and unconsionability.  The judge said no it is legal.  The 9th circ found it did not have jurisdiction over the case since it was not final.  

Bailey v Khoury
La. Supreme Ct.

 In an interesting case the plaintiff was prescribed Depocote for schizophrenia.  She then became pregnant while on the drug that is know to potentially cause birth defects.  She had an ultrasound and was told the baby had multiple birth defects.  Later she delivered a baby with severe birth defects and then sued prior to the one year statute of limitations from birth but after the one year time of the ultrasound.  The Supreme Court said that the statute begins for the baby when the baby is delivered since that is in the best interest of the child.  The mother was not told about the possible causation issue until after the birth so her actions starts then as well. 

Dehn v Edgecombe
Md. Supreme Ct.

Dehn had a vasectomy by a doctor that was recommended by Dr. Edgecombe, the PCP.  He was told by the PCP to get three semen analysis post vasectomy and did not comply.  A year later he had unprotected sexual relations with his wife and she got pregnant.  They both sued.  The doctor was found negligent to the husband but the husband was found contributorily negligent and therefore no money was awarded.  The high court also agreed with the lower court that no forseeability existed to make the physician liable to the wife.  Her case was dismissed. What was not discussed but would be interesting is if Dr. Edgecombe who was found negligent but who had no money paid on his behalf could be reported to the National Practitioner Data Bank.    

Griffith v Mariner Health 

The above nursing home in Melbourne, Florida has agreed to pay the family of Mr. Griffith $1.8 million.  Mr. Griffith was partially paralyzed from surgery and in the nursing home when he was attacked by hundreds of fire ants that killed him.        Top

Right to Die

Schiavo v Florida
Florida Circ. Ct.

The court denied the Department of Social Services any delay in the now planned for removal of the feeding tube of Mrs. Schiavo.  The Department wanted to investigate allegations by Mrs. Schiavo parents.  The court stated that they will not go along with a scheme to delay the ruling regarding the feeding tube.  Mr. Schiavo has rejected a recent $1 million fro a San Diego businessman  to keep his wife alive and not have the feeding tube pulled next week.  He had been offered up to $10 million in the past and has rejected it as offensive.

Howe v Mass. General Hosp.

 Howe has Lou Gehrig Disease and has stated she wants to be kept alive as long as she could appreciate her family.  She was admitted to the hospital five years ago and has been there ever since.  She is now on a ventilator and a feeding tube.  She has not been able to communicate for the past two years.  Her insurance has run out two years ago.  The hospital is attempting to remove the ventilator and the daughter is fighting to keep her mother alive.  This is another sad case of the family wanting to do what the patient wanted originally and not what is probably best for the patient.       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.