March 15, 2006 Recent Legal News
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Lyons v Chinese Hosp.
CA Ct. App.
In a travesty of justice the court of appeal has over rode the lower court and stated that Chinese Hospital in San Francisco has to pay the attorney who sued a $1 million fee. The attorney did nothing for his client who won no damages for doing work in a hospital after he was told there was no asbestos. The only thing the attorney won was a public action claim that made the hospital via a criminal suit clean up the asbestos. The appellate court stated that the criminal suit piggybacked on the civil since the criminal suit was not filed until after the civil suit. Top
Addiego v City of San Francisco
ND CA
Addiego fell in the parking lot of the hospital. Instead of sending their own personnel to help Addiego the hospital allowed her to lie in the parking lot with a fractured hip for over one hour until the paramedic ambulance took her to the ED. EMTALA has a 250 yard rule but apparently this was not consider by the judge who allowed a summary judgment motion. Top
Dyer v Community Hosp
ED Mich.
A physician sued the hospital for gender discrimination since two male physicians were offered more money than she was. It turned out that they all made about the same. The physician also did not show any evidence of retaliation and the hospital won the summary judgment motion.
Mattar v Community Hospital
ND Ind.
A fired physician sued the hospital and lost. The physician alleged that he was fired for discriminatory reasons. The hospital stated he was fired for waiving copays in violation of hospital policy, directing nurses to do duties outside the scope of their practices. The physician showed no hard evidence of discrimination, only unsupported suspicion.
Bramlet v Aspen Valley Hosp.
D. Colo.
The US District Court in Colorado has agreed with a physician that he was an employee of the hospital even though he was listed as a independent practitioner. The hospital set the hours, provided him with the tools of the trade, all staff and a base compensation. The employee status allowed the physician to have a claim for age discrimination against the hospital.
Sinha v Univ. of Cal.
Cal Ct. App
The court ruled that since the physician did not submit any proof of discrimination she could not sue the hospital for discharging her. There were other problems with her care and she was constantly at the bottom of surveys of patients and residents. Comments by a supervisor may have reflected the supervisor's beliefs but did not make direct evidence of his conduct. Top
California v Physicians
Filed
The Los Angeles DA is filing charges against at least 200 physicians for bilking the state our of millions of dollars. The DA won't charge medical fraud since it takes years to prosecute a case. Instead he will use tax evasion as the feds did with Al Capone. He has a good weapon and will get many of the cheats stopped and put away.
Horizon v Cardiologists
Settled
Horizon Blue Cross of New Jersey negligently overpaid their cardiologists by $15 million years ago. In 2004 the insurer sent letters to the physicians stating it wanted it's money back. Of course, the physicians didn't have it and Horizon sued. The case went to court but before a conclusion to the case the parties have settled. The settlement to date has be undisclosed. That may change soon. Top
Arizona v Banner Health
Filed
Over New Year Banner Health in Mesa, Arizona, closed its emergency room for three whole hours due to a totally full hospital. That seems to be against Arizona law. This will be referred for possible sanctions. Banner believes it was correct.
California v Pleasant Care
Fine
California has fined Pleasant Care Nursing Homes $1.3 million for negligence. The Attorney General found a pattern of poor care throughout the operations. Pleasant Care is also pleading guilty to a misdemeanor criminal charges of elder abuse and violating patient care regulations. Pleasant Care will also have a government appointed independent monitor to make sure it follows the regs. This is the third nursing home chain in the state that has been hit with fines. Sun Healthcare had to pay $2.5 million and Beverly Enterprises pled no contest to two elder negligence charges.
Maryland Health Authority v
Suburban Hosp.
Maryland Supreme Ct.
The Court agreed with the state agency that allowed a cardiac program opening at the hospital. The other hospitals with cardiac programs went to court to block the decision of the lower courts to allow the cardiac surgery. This wasn't even a physician specialty hospital, but one of their own. This is a turf war for money and not quality. Top
Stratienko v Monroe
Tenn. Ct. Appeals
The two opponents are physicians at Erlanger Medical Center in Chattanooga. They had a fight in the cath lab at the hospital and Dr. Stratienko was suspended. He filed an injunction and was allowed to stay on staff until the case was concluded. Dr. Stratienko as part of his suit wanted to examine the credentialing paper of Dr. Monroe. Thee papers requested were the request for privileges for peripheral vascular procedures. The lower court stated the papers were protected but this was overruled by the appeals court. The appeals court stated that any papers made in the normal course of business and can ve obtained from other original sources can not be given peer review privilege just by running them through peer review. While all this is going on, the physician continues his practice even though he has gone through a full peer review hearing which was not implemented due to the suit. When the suit is over he will need to apologize and get anger management counseling.
Poirier v Our Lady of Bellefonte
Hosp.
Ky. Ct. App. (unpublished)
Dr. Poirier had temporary privileges at the hospital and was denied full privileges due to disruptive conduct. He had a full hearing and lost at all levels. He sued and lost since he claimed the hospital was attempting to gain financial leverage and then later claimed that he was denied the ability to discover evidence if the hospital was acting in a reasonable manner to further healthcare quality. The court may not substitute its judgment for that of the administrative body ( board) if the board had the administrative powers, the person was given a chance to have due process and whether substantial evidence supported the final determination. Top
Beeker v Olszewski
ED Mich
The US District Court stated that the state policy of allowing pharmacists to refuse to fill prescriptions of Medicaid beneficiaries when they owed money was illegal. The law allows the charging of the co share but not the withholding of services to collect.
Prospect Med. Grp. v Northridge
Emerg. Med Grp.
Ca Ct. App
California law states that it is illegal to balance bill health plan enrollees with which they have a contract. This is true even if there is no writing. Prospect sued because the non contracted emergency physician group balanced billed the plan's enrollees. The suit claimed the emergency group refused to accept a reasonable amount that was offered and balanced billed. The reasonable amount was in the eyes of the suers. Prospect believed that there was an implied contract and that the emergency physicians ignored state law. The emergency physicians filed a demurer which they won and an appeal followed. The appeals court ruled with the emergency room physicians since the law only applied to voluntarily negotiated terms not put in writing. The court also stated that the emergency physicians were only entitled to a reasonable amount for their fees and that their usual and customary was not necessarily reasonable.
Acad. of Med v Aetna Health
Ohio Supreme Ct.
The physician sued Aetna, United and other insurers for antitrust for artificially keeping their fees law. The insurers moved for arbitration since the contracts stated that all business disputes would be arbitrated. The Courts all stated that there was no nexus between a business and an antitrust action. The case could proceed to court. Top
Georgia v Patel
Georgia Supreme Ct.
The Supreme Court ruled that Dr. Narendra Patel received ineffective counsel. Dr. Patel was charged with sexual battery and saw an attorney who hired another attorney that knew healthcare law to advise if a conviction would have any effect on Dr. Patel's ability to practice medicine. The healthcare attorney said it would probably mean a six month probation and the physician pled nolo contendre. However Patel was kicked out of Medicare for ten years. Dr. Patel then went to court to have the plea thrown out due to the healthcare attorney's lack of research regarding the mandatory Medicare prohibition. The courts agreed and stated the plea should be tossed an the case allowed to go to trial. Top
Urology
People v McDonald
Ca Ct. App.
Although this is a criminal case, I put it in a separate category since I am a Urologist. McDonald was caught "peeing" in public. He was tried and convicted in of all places, Beserkley. After he was arrested for the public "peeing" he was found to have possession of cocaine, not uncommon in this city. He claims that the original detention for public urinating was illegal and therefore the finding of the cocaine should not be allowed. The courts stated that it is indeed a public nuisance for one to pee in public and the consequent search and finding of cocaine was legal. Top
Jett v Penner
9th Circ
It is rare to see a malpractice case in federal court. This one is because the plaintiff is a prisoner and he has filed an 8th Amendment claim. In order to win the prisoner must show deliberate indifference to serious medical needs. The case was won by the state in the lower courts but it was overturned in favor of the prisoner by the 9th Circ. The reason was the prisoners evidence that for over one year he had attempted to get treatment for his fractured thumb and that his requests were ignored by the treating physicians and the warden of the penitentiary. This case is a good one to show the inmates what they must do to prevail against the prison in the multiple cases of indifference that occur. 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.