March 15, 2012 Recent Legal News

Peer Review and Employment






Peer Review and Employment

Kappenman v Compassionate Care Hospice 

Kappenman was the quality coordinator at the organization.  She complained that patients were being put in hospice that were not eligible.  She was fired and filed suit as a whistleblower.  The court stated that there was a fact based question as to whether the hospice violated the law and therefore would not give summary judgment on the whistleblower suit.  She also presented enough evidence that the hospice retaliated against her.  In the state charges she prevailed under defamation but not on some others.  She also prevailed on the potential for punitive damages.  I believe there will be a quiet settlement as the hospice does not any more bad publicity.  

Bhan v Battle Creek Health
 WD Mich

Bhan had his privileges terminated and sued for the usual causes.  He filed 18 complaints and had 15 dismissed.  However, three were allowed to go forward.  The individuals sued wanted immunity due to the bylaws.  The court stated they could not state whether in Michigan the bylaws were considered a contract. Also the individuals may not be protected under HCQIA since it was unknown if they participated in a peer review process and Bhan had shown the process was flawed.  The ADA claim against the institution was allowed to go forward but not against the individuals as this was not permitted under the law.  

LaRavia v Cerise
5th Cir

The physician was on a year to year contract.  It was not renewed and there was not a reason given.  There was a public uproar and the university gave the reasons which were published.  The physician sued for defamation and was rejected by the court for not seeking a name clearing hearing.  He was a public figure and there was no malice proved so no defamation.

Nesson v Inyo County Hosp
Ca Ct App

Dr. Nesson had his contract terminated and sued.  The hospital won since in this court district anti-SLAPP suits are allowed to be dismissed whereas in other areas the result would have been different in this regard.  The physician would still have lost since he did not request a hearing.

Kasser v Kadlec Med Ctr
ED Wash

 Radiologist Kasser was hired by a group.  The group signed a contract with the hospital.  Kasser was originally offered a partnership but the offer was withdrawn and he was told his contract would not be renewed.  He sued under antitrust and lost since he did not identify the population.  He sued under Stark and lost since there is no individual plaintiff under Stark.  He sued under contract with the hospital but that was dismissed since he was not in privity with the hospital.  He sued the group and lost since there was an arbitration clause so that part of the case goes to arbitration.  

Wells v Cincinnati Children Hosp
SD Ohio

The nurse had significant GI problems and was treated by a physician with meds including narcotics.  Her fellow nurses soon noticed erratic behavior and she was suspended without pay until she had a return to duty exam.  The exam stated she was not fit to return but the hospital and the nurse agreed to a FMLA leave with treatment for her addiction.  She then passed a return to work physical but the hospital put her on a lesser unit and only part time.  They also filed a report to the state Board of Nursing stating she was a drug abuser.  She sued.  She lost on many claims but won in summary judgment for ADA violations and return to the same job.  She lost the defamation regarding the report since it was privileged.

Pain Care First of Orlando v Edwards
Fla District Ct

Dr. Edwards was the medical director at the clinic and the contract designated him as the owner of the medical records.  He was terminated as the director but stayed on as the only physician.  He left a year later to work elsewhere and asked for the medical records.  The clinic refused and was sold.  He sued for the records and won them as well as a $1 million judgment.  On appeal he lost the money but won the records.  He was chastised by the court for not claiming conversion when the records were sold. 

Midei v St. Joseph Med center

Dr. Mark Midei, the cardiologist in Towson, Maryland, that is accused of unnecessary stenting, wants his suit against the hospital for defamation to go forward.  The hospital wants it dismissed.  To date the physician has lost his income, name and medical license.  He wants to get this back.  Dr. Midei signed a release and as soon as the ink was dry the hospital sent letters to all his patients about unnecessary procedures.  The decision is expected in the near future. 

Chopourian v Mercy General Hospital
Harassment Decision

Ani Chopourian, an Armenian physician assistant at the hospital, filed at least 18 harassment complaints about various physicians and staff at the hospital.  She was fired for professional misconduct (something like disruptive physician).  A jury believed her and not the hospital awarding her the larges harassment verdict in the country, $168 million. This consisted of $42.7 million in compensatory and $125 million in punitive damages. This, of course. would not be upheld on appeal but she will get a large large large settlement. At the trial she had other employees back up her story of large cardiac surgical egos and the hospital allowing them to get away with anything they wanted.

Guinn v Mt. Carmel Health
SD Ohio

Dr. Guinn was summarily suspended by the cardiac department at the hospital after he was accused by one person of implanting a pacemaker into a person who's last one was removed and the area infected.  Dr. Guinn denied the allegation but all the people above upheld the suspension.  Dr. Guinn, who is Black, sued for discrimination and the usual other matters.  He sued the hospital and the individuals responsible for the original suspension.  The court tossed the antitrust issue since he had no standing to sue.  His discrimination cause was allowed to go forward due to a "sham" peer review.  All defendants that had not made "false" statements were dismissed but those accused of making false statements were kept in the case.  

Totonelly v Galichiaa Med Grp
D Kan.

Dr. Totonelly, a radiologist, was hired by the group.  The contract stated that he was not allowed to do outside work except for expert witness.  He did outside word and was terminated.  He sued and to no one's surprise he lost in summary judgment.  

Rhodes v Sutter Health
ED Cal

Dr. Rhodes was hired by a medical group affiliated with Sutter Health and another organization.  After she was terminated she sued all three.    The reason for the termination was her complaining to the Group that the requirement for pre breast biopsy consult with surgery was not only unnecessary but illegally feathered the pockets of the group. After her multiple complaints she was given low work value radiographs to read and so had to work harder to make the same money.  She also claimed that besides the harassment she was required to live within a certain radius of the hospital when others were not.  Can you imagine the Gould Medical group doing this?  The court stated she had no claim against the other two entities but could sue her employer group. 

Kammerzell v St. Luke's Hosp

Nurse Kammerzell was accused on two occasions of being intoxicated on the job.  She flunked a breathalyzer test but the machine was faulty.  she submitted urine samples that showed no evidence of alcohol. Despite the urine tests she was terminated and sued. She also agreed to random testing as a condition for returning to work.  She passed all these but was still fired.  She sued and won on all counts in summary judgment.  I have no idea where these hospitals come up with their attorneys.  

Summers v Lovelace Clinic
New Mexico Supreme Court

Dr. William Summers, an internist and psychiatrist, was accused by two women of using sexually explicit and offensive language during their visits.  The physician said he did so in the first case but the second case was never proved.  He had his internal medicine credentials stripped and his psychiatrist credentials placed on probation for two years.  He was reported to the NPDB.  The clinic did not interview the physician about the second case as is required.  The peer review committee found that some of the charges were unfounded but remained concerned about some of his practices.  He appealed that decision to the Board and lost there as well.  He sued and the lower courts found that the Clinic had done bad peer review by relying on case worker notes and not direct testimony.  He apparently won damages.  The high court said that not talking to the physician was not fatal to the case so the Clinic retained it's immunity under HCQIA and no damages could be awarded.    Top


US v Rathod

Babubbai Rathod owned medical clinics, home health and outpatient rehab clinics in Grand Rapids, Michigan.  Indicted were all associated with all the ventures owned by Rathod including physicians Andre Smith, Lino Dial, Jr., Niti Thakur and Muhammad Rais.  They along with another physician and a PA were accused of kickbacks for referring patients to the Rahod clinics.

US v Gabriel, Jr.

 Jacinto Gabriel, Jr. of Berwyn, Illinois, has been charged with submitting claims for home health treatments.  Mr. Gabriel is not a physician or has he had any medical training.  Along with Mr. Gabriel ten other people wire indicted including two physicians and a nurse. The home health agencies were Perpetual in Oak Forrest and Legacy on the north side of Chicago.

US v Beth Israel Medical Center

The New York City hospital has agreed to pay $13 million for upcoding.  The hospital admitted they had done this years ago.  

California v Salinas Valley Board of Trustees
To Be Filed

A study of the doings of the Board of the hospital showed multiple potential conflicts of interest with the members doing business with interests which with they have a connection.  This has been going on for at least five years according to the article in the LA Times.  Several of the cases were sent to the local state attorney for investigation.  This is the same hospital that some years ago had an egregious breach of conduct in a peer review case that led to new laws being made.  This hospital also has huge pensions for it's senior executives.   

US v Symphony Diagnostic Services
SD Ohio

An employee alleged false claims against the organization for a "swapping arrangement", where the organization would take some patients at below cost in order to get the higher cost patients sent to them.  The employee complained to the CEO about the arrangement and then was soon terminated.  He won all in summary judgment except for the issue of retaliation for filing the instant action.  He could not be retaliated against for this since the service was not on notice that the case would be filed. Another example of poor legal advice to an organization.        Top


Edwards v Lee Memorial
Florida Legislature

Over 14 years after the birth of the plaintiff and after a jury awarded the plaintiff $31 million for negligence resulting in the cerebral palsy, and after the state's sovereign immunity laws prevented the from paying that amount, the legislature voted to allow the payment of $15 million from Lee Memorial to the plaintiff.  Lee is to pay $10 million by the end of this year and another $1 million per year for the ensuing five years.  The hospital for some reason does not have insurance to pay that amount and does not have the cash to so so either.  This will cost he hospital the ability to build a new wing for children as they voluntarily did not buy insurance.  Idiots.

Patients v Brookdale University Hospital 

There are over 100 open suits for medical malpractice against this Brooklyn hospital.  The legislature is saying there is something wrong with the hospital and it is the management.  This hospital has financial problems and ran a deficit of $42 million in 2010.  The former CEO was convicted of bribery.  This deserves a close look by the state, TJC and CMS.

Jeffs v West
Utah Supreme Court

The minor children of a woman shot by her husband after he began taking various prescription medication may sue the prescribing physician for negligence.  The court said that it is a foreseeable risk that the medications  could cause injury to a third party.  The trial court dismissed the suit due to lack of privity.  The high court said this is not derivative but an injury to the plaintiffs directly.  

Hamilton v Isbell Medical Group 
Alabama Supreme Court

The high court overruled the trial court and stated that the parents of an unborn fetus whether or not it could have survived, can be sued for wrongful death.  This is part of a trend of giving greater protections to the fetus.  The ruling allows the plaintiff to continue the suit against the physicians.  The patient was pregnant and her initial ultrasound was delayed.  Then she was told it was not necessary.  When it was finally done an abnormality was found.  she requested to see a perinatologist.  This request was refused and the fetus died.       Top


Blue Shield v Monarch Healthcare of Irvine

Blue Shield filed a suit for $10.5 million against the large physician group after the group was acquired by a subdivision of United Health Care.  Blue Shield contends that after the purchase the physicians refused to treat some Blue Shield members and attempted to get them to switch to United.  Blue Shield states it lost almost all of its Medicare HMO patients and lost out on new patients due to Monarch's actions.  This will be hard to prove as patients may switch to whatever insurance their physician takes.  Physicians are more important to patients than insurers.  Blue Shield will terminate its contract with Monarch May 1.          Top


Texas v Saenz

Nurse Kimberly Saenz is on trial for her life for allegedly using bleach in the Iv tubing on dialysis patients causing deaths of five patients. 

California v Tseng
Arrested for Murder

Dr. Hsiu-Ying "Lisa" Tseng, an Osteopath, has been arrested for second degree murder and 21 other counts for drug overdose deaths.  She is accused of writing over 25 DEA prescriptions a day or over 27,000 over three years.  Her husband, also a physician continues to keep the practice open.  He has not been charged.   

Ibrahim v Adel

 Dr. Ahmed Adel, an Egyptian physician, was on trial for doing virginity tests on women arrested by the government.  The court said such tests are not being carried out and dropped the case. This, of course, was not true but the ruling can not be appealed.    Top


Paul v Providence Health
Oregon Supreme Court

Paul was the lead plaintiff in a proposed class action suit against the hospital system for their having the records of 375,000 patients stolen along with a laptop fro an employee's auto.  The plaintiff attorneys alleged that the class had emotional distress even though no information has surfaced.  The court shot down the class action attorneys since the cost of monitoring of credit reports did not give rise to enough of a problem to justify a class action suit.  Bye Bye scum bags.        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.