March 15, 2007 Recent Legal News





Peer Review






Jordan v Wilkes-Barre Hosp.

Lori Jordan, RN has had an exemplary work record.  She was fired from the hospital after reporting a sexual harassment of a fellow employee.  Jordan has been promoted at the hospital many times over the 25 years of service and was the clinical director of critical care nursing units.  Jordan was 42 at the time of her firing for (according to the hospital) questions relating to her work day as were monitored via parking stamps.  Jordan claims that other younger people were not equally monitored.  The case was filed in federal court for age discrimination and retaliation.

Goldberg v Rush Univ.
Ill App. Ct.

The physician sued for breach of contract for not being allowed an equitable share of ED call and other items she thought she was entitled to.  Both court ruled that they will not interfere with a private hospital's internal staffing decisions. 

Clayton v Pa. Dept. Pub. Welfare

A Black physician sued after his on call time was cut back, his office and mailbox were moved and he was denied cash and bonus payments.  These were over several years.  All causes were dismissed either for lack of standing or state immunity.  He also failed to establish that race entered into the actions.  

Talukdar v VA
US Dept. Labor

Dr. Talukdar was terminated from the VA in 2002 for whistleblowing on the VA for the underpayment for non-citizen physicians.  The law is the physicians must be paid the same if a citizen or not.  Dr. Talukdar was ordered reinstated to the VA with full back pay.  Back pay was also order to those physicians who were underpaid by the VA.  This should cost the VA in Fargo North Dakota a pretty penny for four years of a physician's back pay. 

Keyes v Murillo

Ashley Keyes is suing Dr. Boris Murillo an his employer, Berkshire Medical Center for breach of privacy.  Ms. Keyes' medical record was accessed by the doctor so he could get involved with her.  She is accusing the hospital of failure to protect her privacy and the physician for illegally accessing her records.     Top


Baker v Akron General

The sons of a woman who died in the hospital have not only sued the hospital but also have requested a change in the cause of death from accidental to homicide.  The woman, Victoria Baker, died from a IV dose of potassium phosphate.  The med was supposed to go into the feeding tube not the IV line.  The med caused a cardiac arrhythmia which caused the death.  This will never reach trial.  Just get out the checkbook now. 

Dinkins v Metropolitan Med Ass. 
NJ Filed

The patient went to the Clinic for an abortion.  Post-op she went into a coma and remained so for one month.  She is still in the hospital.  The Clinic has been closed by New Jersey until it corrects the "immediate and serious" risks.  Dinkins had to have an urgent hysterectomy as well as transfusions for her condition.      

Thomas v VanTuinen
Mich Ct. App.

The patient's heirs sued the physician after she died following being given an anticoagulant.  The trial court ruled for summary judgment for the physician since the physician was not the treating physician.  The Court of Appeals overruled the trial court and said there are facts that need to decided by a jury such as who signed the order, did the physician approve the use of the drug, or whether a resident was under the control of the physician.  Usually the supervising physician is liable for acts of the physicians under his control.  The Court also stated that a physician may be liable for a partner if the physician is the president of the group.   

Knabb v International Biomedical Inc.

The family of Knabb who was a newborn in an incubator in an ambulance being transferred to a hospital was severely injured when the ambulance was hit by a car.  The aluminum restraint bar was "faulty".  The family received $4.6 million from the company that made the bar and the rest of the $5.3 million from Children's Hospital of Pittsburgh, Guardian Angel Ambulance and the estate of the driver.  

Berger v Repro Labs

Two women in New Jersey who wanted to have a child together had the embryos lost by the company.  They are suing for $3 million for emotional distress. 

Sheikh v Lexington Medical
13th Juror

Dr. Sheikh, a surgeon at the hospital died after a double knee replacement.  His heirs sued the hospital, surgeon and anesthesiologist for malpractice in 2002.  The jury awarded $30 million to the family.  The plaintiff attorney stated at the trail that the doctor was given a lethal dose of pain killers and then lost crucial original records.  The hospital countered with the fact that the Doctor had a underlying fatal heart condition.  The two attorneys had a secret pact with a high low figure and as part of the pact there would be no vigorous defense of the hospital.  The jury took this lack of defense as guilt.  The trial attorney now did what in South Carolina is known as the thirteenth juror and nullified the verdict.  The case will now be retried.   

Hogan v County Villa Health
Ca Ct. App.

Hogan sued a nursing home for elder abuse. The daughter had a statutory healthcare power of attorney signed the patient into the home and signed all the papers including one that stated if there was a dispute arbitration would be the method of decision.  After the suit was filed the defendant moved for arbitration.  The trial court denied the petition since the power of attorney did not allow the daughter to sign away her legal rights.  The Court of Appeals overruled the trial court and stated that arbitration was part of  healthcare decisions. 

Doherty v Aleck
Va Supreme Ct.

 The patient had a history of severe cardiac disease.  He visited the defendant podiatrist for a bunion.  The podiatrist did multiple procedures on the bunion which eventually caused an amputation of the toe for gangrene.  The trial went to the plaintiff for $850,000.  The decision was overturned because the expert for the plaintiff did not show causation or state to a medical certainty that the treatment was not needed.  The high court overruled stating that the expert did state with enough certainty about the need for the surgery and the causation.  The trial verdict was reinstated. 

Bailey v US
To Be Filed

The family of Iraq veteran Justin Bailey has accused the Los Angeles West Side VA of the death of Justin.  Justin checked into the VA for treatment for stress disorder (PTSD).  He was given five prescriptions of five meds including Methadone.  The next day he was dead in the VA rehab unit.  Justin had a habit of drug abuse. 

Doe v Kaiser 
To Be Filed

 Kaiser is at it again.  This time they killed a seven week old baby with the wrong med dose.  Kaiser admitted the fault and blamed human error( not their botched EHR or transplant programs.  This one happened again at Kaiser Santa Clara which has made prior errors with three patient deaths in 2004-05.      Top


NY v Rashed

Dr. Ahmed Rashed, a resident physician at Maimonides Medical Center in New York, has pled guilty of third degree theft.  While a first year medical student he stole a hand from a cadaver and gave it to a stripper friend.  He was sentenced to $5000 fine and probation for 15 months, the end of the residency. 

US v Surgeons

Three surgeon rented space to HealthSouth and received inflated rental payments for patient referrals.  The surgeons Drs. Robert Eberhart, Jonathan Holzaepfel and Thomas King of Portsmouth, New Hampshire paid a total of $275,000 of the total $1 million settlement.  The remainder was paid by HealthSouth.  

Craker v DEA

 In an important ruling a DEA ALJ has recommended that Dr. Lyle Craker, PhD. of the University of Massachusetts be allowed to grow marijuana for research.  Dr. Craker was initially denied permission by the DEA.  Dr. Craker and the ALJ decided that there is not enough marijuana for legitimate research.  The DEA routinely denies requests for political reasons.  This ruling may allow others to also grow their own marijuana to do the necessary research on the drug.       Top


Ca. Med. Bd. v Roozrokh

The California Medical Board is investigating two physicians from Kaiser.  They were both working at the time for the organization that harvests and distributes organs in northern California and not for Kaiser.  The claim is that while in the OT awaiting the imminent death of a donor Dr. Roozrokh ordered excessive doses of medication to speed the death process.   A new report stated that Dr. Roozrokh ordered 200 mg. of morphine and 80 ml of Ativan.  The other physician Dr. Arturo Martinez, the surgical director of the now defunct Kaiser transplant unit, was also in the OR as was the patients primary care physician.  The medication did not kill the patient and he was returned to his room where he died the next day.  His organs were not harvested.  The law states that no transplant person may direct the treatment of a donor due to the potential for conflict of interest. The coroner has ruled the death natural.

Faulkner v North Carolina Med Board

Dr. Faulkner, a physician from Raleigh, NC, has added his name to a suit against the Medical Board.  The plaintiffs allege that the North Carolina Medical Society has too much power over the Medical board.  Now the Society, which is not representative of over half of the state's physicians, nominate seven of the 12 board members.  Prior legislative changes have not passed.  The suit wants the Legislature to do a different selection method that might include the majority of physicians that do not belong to the society. 

North Carolina v North Carolina Medical Bd.

In an interesting law suit the State is suing its own Medical Board for threatening the licenses of any physician that assists in an execution.  The state is attempting to use the argument that the Board can not discipline someone for attending a non medical procedure.  This may lead down the slippery slope of since this is not a medical procedure, no physician is necessary which is against a current state court ruling.        Top

Peer Review

Hayes v Premier Living
NC Ct. App.

A wrongful death action was filed against the Long Term Facility.  The plaintiff requested in discovery the incident reports.  The facility refused.  The trial and appeals court both stated to hand over the reports since reports that may be considered by a peer review committee are not protected, only those actually considered by the committee or were a part of the committee proceedings or were produced by the committee.  These reports were not produced or used by a peer review committee.

Calabrese v St. Mary's Mich.
ED Mich

A physician discharged by the hospital filed an antitrust claim against the hospital.  The physician lost, as they almost always do, since the physician failed to plead the relevant geographic market.  One needs to prove harm to the market, not just harm to the individual.  The court allowed the plaintiff 45 days to amend the complaint.

Vranos v Franklin Med Ctr.
Mass Supreme Ct.

The physician had his privileges summarily suspended after exhibiting "disruptive conduct" at a meeting.  As part of his "fair hearing" he was denied access to disputed peer review documents.  The lower courts allowed access but the high court said it was not allowed.  The disruptive conduct was a "heated discussion by Vranos, the chief of Surgery with the director of surgical services over a policy to restrict surgical availability.  This was in a regular scheduled meeting of the surgical support committee. After the meeting the chicken livered director tattled to the president that he had been afraid that he may have been hit.  Prior to the argument the president and Vranos had been engaged in conversations to have Vranos leave his group and start a group at the hospital.  Vranos decided against that.  The day after the discussion the president sent a letter of summary suspension for the argument and a history of disruptive behavior.  A peer review committee that included the president met and recommended that Vranos be reinstated with three conditions, an apology to the chicken, resignation as chief of surgery and anger management.  The Board approved.  Vranos accepted the conditions and then sued for defamation.  In discovery, Vranos requested documents prepared for the peer review hearing consisting of incident reports, committee minutes and other statements.  There is a rule that allows a physician to obtain the information if there is malice of the hearing, not the initiation of the hearing.  Here the court said there was no malice at the hearing.  Sounds like the court was misinformed as to the meaning of malice and when it should apply.  Vranos should take all business to a competing hospital.

Trover v Kluger

 A physician sued a newspaper that printed a story about disciplinary action against the physician by a local hospital.  The physician stated that the articles led to his suspension from the hospitals.  He stated that the newspaper falsely accused him of grossly negligent conduct.  The newspaper said the articles were either true or protected by the First Amendment.  The Court stated that all untrue facts came from a failed malpractice case against the physician.  The Court did allow a defamation suit to go forward against a physician who published an article about Trover and the newspaper who printed that article.  Trover will need to show the newspaper was negligent in checking the truth or falsehood of the allegations in the letter. 

Colvin v Grand View Health
Mich Ct. App.

The physician was arrested for carrying a concealed weapon into the medical office of a former employer.  The office was private but next to the surgical office of the hospital.  The hospital decided that this was a violation of the hospital bylaws and the peer review body agreed.  He was summarily suspended and reported to the NPDB for "unprofessional Conduct".  The physician sued for defamation.  The physician argued to no avail that the term "Unprofessional Conduct" was to be reserved for physicians who were practicing at the time.  His offense was not while attending to patients.  The Court disagreed and said his conduct was unprofessional and that the physician had been told in advance this was the code to be used.  The physician did not advance any other code, so lost the argument.        

Cretton v Protestant Mem. 
Ill. App. Ct.

A patient's estate sued the hospital after the patient died following a fall in the hospital.  Following the fall the nurse did a handwritten note about a meeting with the patient's daughter telling her about the fall.  The court ruled that this was not written for peer review but created separately and could be turned over to the plaintiff.  The plaintiff won $950,000.         Top  


Hamrick v Charleston Area Med Ctr.
Supreme Ct. W.V.

In the second of two cases against the hospital by Dr. Hamrick, the state high court ruled that the open meeting law applied to non-profit and government hospital Board meetings and the Medical Staff Executive meetings.  He had attempted to appear before the Med Exec Committee to explain why he wanted to provide his own med mal insurance.  The first case earlier in the week allowed Dr. Hamrick the ability to provide his own med mal insurance.  Since he now has that right, he doesn't need to appear and just get his own insurance.  Two for Hamrick and none for the hospital.   

Drew Univ. v LA

Drew is suing the Los Angeles County for $125 million for breach of contract.  The county severed the medical school from the poorly run King Hospital so the hospital could get back on track.  The LA Board of Stupes was shocked at the language used by the University against the "betrayal by the county."  The County ran the hospital which was awful, not the medical school which had several of its programs decertified by the national organizations.

McKenzie Med Ctr. v PeaceHealth

McKenzie-Williamette Hospital successfully sued the evil PeaceHealth for antitrust last year.  The accusation proved in court was that PeaceHealth had used its dominant market place to attempt to get rid of a competitor.  The appeal to the 9th Circuit of the $16.2 million verdict is being heard.  PeaceHealth used predatory pricing of steep discounts to for Blue Cross in areas where there was no competition in return of exclusivity of the other services.  The case was based on a case from the 3rd Circuit.  If the 9th doesn't follow then it would go to the Supreme Court for determination.

Patients v BJC HealthCare
Class Action

Poor or poorer BJC HealthCare in St. Louis.  Patients have sued for charging the uninsured more than others for treatment.  A judge has granted class action status to those from 1990 to the present.  Another problem is the tax exempt status of the non profit hospital.  Their expenditure in 2004 for charity care was a measly 0.84%.  Still its alot of money in a system that owns 13 hospitals. 

Brockovich v Community Med. Ctr.

Erin Brockovich's (yes, that one) suit against the hospital in Fresno, California for billing Medicare for hospital errors.  The judge said Ms. Brockovich had no standing in this case or the 48 others she filed.  The plaintiff is not a Medicare recipient and had never been treated at the hospital.       Top


In re Kayla T v Linda T
Custody Hearing

The Family court of New York removed a 13 year old female from the custody of her parents due o morbid obesity.  The Court had found that all practitioners agreed the obesity was due to lack of exercise and too many calories.  The parents had been warned previously.  This is the first time it has happened in New York but California, Iowa, New Mexico and Texas have recognized morbid obesity as a actionable cause for removal of custody of a child.        Top


Ogle v PacifiCare
Ca Ct App.

Ogle sued for breach of contract and bad faith.  The "insurer" moved to compel arbitration.  The trial court and the Court of Appeals both said to court.  The arbitration notice is invalid by not complying with the statute.  The enrollment form contained an arbitration clause printed in bold and above the signature line as required.  Then the dumb "insurer" attorneys stated that the form was not a contract and if accepted the "insurer" would send the Ogles a policy with the exact terms and conditions.  The booklet was 37 small print pages and only briefly mentioned arbitration without wetting out its parameters.  

Kurtek v Capitol Blue Cross
3rd Circ (unpublished)

In another correct decision but one that is difficult to swallow the 3rd Circuit stated that the state claims by a women for damages due to a delayed decision by the insurer caused severe injuries to the patient.  All that was true but ERISA came in and since the delay was an administrative decision and not a medical one the fed law held.  Case dismissed.

Sutter v Oxford Health Plans
3rd Circ.

An arbitor held that a physician who contended that the plan did not pay claims in a timely manner under New Jersey law was entitled to a class certification.  The 3rd Circuit upheld the decision.  It held that the arbitration judge did everything appropriately and made the decision based on all known law and facts.        Top


Lima-Rivers v UHS of Puerto Rico

In an important case that looks at inpatients and EMTALA, the court ruled that a newborn delivered in a hospital and an inpatient there was not stable for transfer.  The case against the hospital was not dismissed.  The baby was born by C-section and by the next day had significant GI bleeding.  He was transferred to another hospital but arrived in extremis and died soon after.  The court stated that EMTALA was not confined to EDs.  The court stated that the CMS regulation stating that EMTALA does not apply to inpatients is only a interpretive rule and without the force of law.        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.