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Radiologists-Beware
Mejia v Handler
San Bernadino Superior Ct.
Mejia came to the ED complaining of neck pain and upper extremity numbness. The ED physician Dr. Bauer examined the patient and ordered cervical spine x-rays. The X-rays were sent telegraphicaly to Dr. Handley at about 0430. Dr. Handler saw a congenital abnormality (normal variant) at C6-7 and related that to an x-ray tech who relayed the information to the ED doctor. The patient was discharged on Valium and pain meds. She became a C1-2 quadriparetic after vomiting in the car on the way home. She had a C1-2 subluxation on the X-ray that was missed by the radiologist. She sued the hospital, ED physician, the radiologist and their respective medical groups. All were found not guilty except the radiologist and his group. The damages assessed in a structured payment were $26,281,654 for future medical care; $7,209 083 was the present value of that care; $50,000 past pain and suffering; $200,000 future pain and suffering; and $502,268 past medical care. Be careful when awoken to read a X-ray and look at the entire X-ray not just the obvious. This was a very costly sleep. I do not know the malpractice policy limits but it is probably less than the verdict.
Who was Sued?
Cushingberry v Kaiser Health Plan
Binding Arbitration
The plaintiff was a 39 y/o female with diabetes. She had presented several times in the past with hyperglycemia. This time she went to the urgent care with sx of gastroenteritis and a high glucose. She was given meds and one liter of saline and discharged even though still complaining of feeling weak, unable to urinate and had a rising pulse rate. Soon after, she went into cardiac arrest and died. The autopsy report stated the cause of death was electrolyte imbalance. The nurse on the case was a diabetic nurse and testified that she asked Dr. Kurland to draw electrolytes and the doctor refused. The expert's disagreed as to whether or not the plaintiff was dehydrated and needed more fluids. The decision was against Kaiser for $375,000 for pain and suffering (MICRA $250,000) plus $125,000 for loss of past and future support and services. I wonder if the physician was reported to the Medical Board and the NPDB? Doubtful, since Kaiser and Permanente Medical group were the named defendants.
Million Dollar Settlement
The parties of this San Diego case are unknown. The facts are the patient went to a Northern California ENT for symptoms of nausea, vomiting, vertigo, neck pain and visual problems that worsened. She was diagnosed as having bilateral benign paroxysmal positional vertigo, a mouthful of words. Several days later after the symptoms continued to worsen she saw another ENT in the same group, who diagnosed vestibular neuritis. She then flew to San Diego to be married. She went to an urgent care clinic and was given Valium and Phenergan. She was married that night. The following day she returned to the clinic and saw the same MD. A cervical spine x-ray was taken and she was discharged. The next day she was unconscious and taken to Scripps. A CT Scan showed an absent fourth ventricle secondary to a medulloblastona. Her organs were harvested and she died. The plaintiffs argued that no one did a funduscopic exam which would have revealed the increased intracerebral pressure. The plaintiffs also stated that the tumor was surgically resectable and she had a 70% chance of long term survival. The defendants must have agreed since they settled for the million dollars. Top
Perry v Shaw, UCLA
Cal App.
A California Appellate court has ruled that when Dr. Shaw performed unconsented surgery on Ms. Perry he committed a battery. Battery is not negligence (malpractice) and MICRA does not apply. Ms. Perry went to UCLA to remove extra skin after losing about 100 pounds. She had refused breast augmentation on two occasions in the doctor's office. She signed the consent while under sedation and after being told be the doctor he would not perform the augmentation even though it was on the consent form. Dr. Shaw not only removed the skin but transferred the skin to her breasts enlarging them from a 34 B to a 40DD. He then told her that she may be upset now but would be happy regarding the enlargement within a year. WRONG. The trial court awarded $59,000 for medical costs and $1.03 million for emotional distress. The court said the $250,000 cap under MICRA for emotional damages does not apply here. As one of the original members of the Physician's Crisis Committee who got MICRA (AB1XX) to the legislature, I am usually a great defender of the law. Here, in my opinion, the court is correct. Not only should MICRA not apply but I am not sure any malpractice coverage should apply. Top
Ruelas v Staff Builders Personnel
Ariz. Ct. App.
The defendant group provided nursing staff to a hospital. Two of their nurses were asked to give Ruelas an enema and abused her. The plaintiff sued Staff Builders for vicarious liability and negligent hiring. The trial ct. granted summary judgment for Staff Builders. The Ct. of App. affirmed stating the nurses were lent employees under the control of the hospital. Since the nurses were lent Staff Builders had no control over the actual performance but only had administrative control. This is not enough to give vicarious liability. In the negligent hiring issue Staff Builders had purchased the agency that hired the nurses only eleven days prior and no evidence was presented to show negligence in failing to investigate the abusive nurses.
N.X. v Cabrini Medical Center
NY App.
N.X. underwent a laser procedure for genital warts. While she was in the recovery room Dr. Favara, a surgical resident with no part of the patient's care, did a pelvic exam with fingers in the vagina and anus. N. X. complained to a nurse who reported him to the supervisor. Dr. Favara admitted to the pelvic exam and that he went against hospital policy of by not having a chaperone when it was performed. Dr. Favara was fired. The patient sued Cabrini for vicarious liability since the sexual assault was within the scope to the employment and they had failed to prevent the assault. Cabrini was found not liable since when a sexual assault occurs it is not in the scope of employment since it does not further a hospital's business as a medical provider. Also, the Cabrini nurses had no duty to prevent the assault since there was no prior history by Dr. Favara and requiring nurses to question doctors before they approached a patient would fly in the face of the workings of hospitals.
Brandt v. US Dept of Veteran Affairs
ME. Dist. Ct.
In another jurisdiction things change. In this case a patient sued for negligence a physician working for the VA under a contract with a staffing agency. The Court stated that since the physician was an independent contractor there was no liability under the theories of vicarious liability, apparent agency or negligent supervision. That was similar to the above cases. The Court went on to allow a case for negligent credentialing since the VA possibly did not follow its own rules. The Court lastly allowed a case to go forward against the VA for any negligence of its own employees. Top
Stanford Sued
In the continuing saga of the Nezhats, Stanford as well as the chief of the medical staff is being sued for defamation by two gynecological oncologists. The suit alleges a memo sent out by the COS defamed the two oncologic gynecologists. They have been ardent critics of the Nezhats', who are reproductive surgeons and therefore do not compete for patients. This will get messy! Top
Ingram v Muskogee Reg'l Med
10th Circ
Ingram had a chest GSW that required cardiovascular surgery. The hospital had none so arranged for transfer. The patient died shortly after the transfer. The trial court and the 10th agreed- no case. The hospital did a MSE and appropriate transfer of a stable patient. The suit stated that the hospital should have put in chest tubes prior to transfer. Since the plaintiff did not have any experts on this issue dismissal was proper.
Jackson v East Bay Hospital
9th Circ.
A psychotic patient on anti-psychotic medicine was seen several
times in Redbud Hospital ED for psychotic symptoms, evaluated and sent to Lake
County psychiatric unit. The patient was evaluated there as an outpatient.
He returned to the Redbud ED for chest pains when breathing, sore throat and dry
heaves. Again after an appropriate work up he was sent home to be seen again by
Lake County. They refused since he had been recently evaluated
there. The patient returned to Redbud and this time sent to East Bay
Hospital where a psychiatric evaluation but not a medical evaluation was
performed. The patient went into cardiac arrest the same day and
died. The district and Circuit court agreed there was no EMTALA violation
since the patient was seen and had a medical screening exam on multiple
occasions comparable to examinations offered to other similarly situated
patients. He died of a cardiac arrhythmia caused by clomipramine
(Anafranil) toxicity. He had never been diagnosed with this condition. The state
court negligence claims are still in process. Top
Dallas Co. Med. Soc'y v Ubinas-Brache
Tex. App.
The medical society, a voluntary, private, non-profit organization issued an order expelling Ubinas for overcharging three patients who filed complaints. After an appeal he was expelled form the medical society and the Texas Medical Association. Ubinas filed suit in the Texas court and won. The medical society and medical association appealed to the Court of Appeal, who sided with them. The appeals court allowed immunity for peer review actions even though no monetary damages were asked for.
Braverman v Columbia Hospital
Wis. Ct. App.
Following spine surgery the patient developed a nocosomial infection. She sued the hospital. Two years prior the hospital asked the DHS to review and evaluate the infectious disease procedures to help control its increasing nocosomial infection rate. The DHS issued a report. The hospital's infection control committee also collected statistics. The patient sought to discover both the DHS report & the hospital infection control report. The Appeals Court allowed the infection control report since Wisconsin's peer review law specifically allow production of statistical information. The Court denied the production of the DHS report since the hospital invited the DHS to participate in its quality process, peer review protections held. Top
Schindler v Schiavo
Fla. Dist. Ct.
The husband of a woman with a ten year history of PVS secondary to an MI was on artificial life support. She had won a large malpractice award. The patient's husband and guardian wished to discontinue life support and the mother disagreed. The husband petitioned the court and won. The mother appealed. The Appeals Court ruled for the husband ruling that the trial court could go ahead without a "guardian ad litem" for the patient even though the husband stood to gain financially. Although there was no formal advance directive in this case, there was evidence that the patient had made oral statements to friends about her wishes. Top
Mahan v Avera St. Luke's
SD Supreme Ct.
Avera is the only full service hospital for ninety miles. The hospital was attempting to replace its neurosurgeon but stated that it could not if there was an orthopedic spine surgeon already in the area. They finally recruited a neurosurgeon and about the same time a local orthopedic group (OSS) built their own surgical center. In response to the loss of income, the hospital closed its staff to any more orthopedic surgeons except for two that the hospital were recruiting. This was done without medical staff approval. OSS recruited a new physician but he was denied staff privileges based on the decision one year prior. Mahan, the new surgeon, sued and won an injunction in trial court. The hospital appealed. The Supreme Court reversed stating the hospital did not breach the bylaws. The Court agreed that the bylaws are a contract between the medical staff and the hospital and that Mahan and OSS had damages. The Court however ruled that the medical staff bylaws were derived from the Board's bylaws, which stated the Board delegated to the medical staff the evaluation of competence and the making of recommendations to the board regarding initial applicants. The Board retained final approval. The Court stated that this gave the medical staff only the ability as stated and allowed the Board to make business decisions without consulting the medical staff. If the medical staff could overrule a "valid board business decision" the corporate structure would be turned upside down. The closing of the staff to certain named procedures was reasonable and meant that there could be no violation of the covenant of good faith and fair dealing required in all contracts. The Court then dissolved the permanent injunction of the lower court. What do you think? This could be one of the worst decisions ever made for medical staffs. Top
Westside Surgery Center v Herrin
Tex. App.
Physician limited partners won a $600,000 judgment against a ASC and two of its owners. The owners violated federal law and defrauded the limited partners by using a mandatory buy out clause if the limited partners did not utilize the ASC. The general partners had a 5% management fee and therefore would get paid more the more the ASC was utilized. The owners started keeping books on the utilization by the limited partners as soon as the ASC was formed. One of the owners had personal liability for knowingly participating in a tortuous act.
US Probes 2 Chicago Cardiologists
The federal government is investigating charges that two cardiologists working out of the same Chicago hospital did thousands of unnecessary cardiac procedures. One of the physicians has already had his license suspended and the second is probably not far behind. In a review of Dr. Cubria, a LIP at Edgewater Hospital, was found by an independent reviewer to be "an immediate danger to the public." The other cardiologist Dr. Sriram, another LIP at Edgewater, was found to have only 3 of 27 reviewed catheterizations medically necessary. Dr. Sriram also is being investigated for billing fraud for non-existent visits up to 187 per day. The government believes he may be a risk to patients and possibly a flight risk and has asked that he be jailed immediately. I don't understand how the hospital's medical staff did not have systems in place to catch this earlier. Top
State Bd. Mo. v Fallon
Mo. Supreme Ct.
The Supreme Court of Missouri allowed an order directing the medical director of Prudential to appear before the medical board for a review of his decision made in behalf of the plan. The director claimed ERISA preempted but the court said no since this was a medical board reviewing the action of a medical licensee who made a decision whether a procedure was medically necessary not whether it was covered. This the court stated was a medical decision and not an administrative one and therefore not preempted by ERISA. Top
An employee who was fired by a oncologist accused the oncologist of lending slides of Cardinal Terrence Cooke's blood for prayer. The employee is suing the hospital, Sloan Kettering, for firing her when she found she had breast cancer had had to miss a significant amount of work time. She was also ordered to give the slide to certain patients for prayer use and documented her claim by a copy of a letter thanking they doctor for the use of the blood slide. Top
Lucky CHW
CHW and Sutter agreed that CHW would buy out Sutter in Merced. The buyout price included oversight by California that CHW would continue and not reduce the reproductive services at the hospital. This means that contraception and tubal ligations will be done in the Catholic hospital. CHW also received two subpoenas, one from a federal criminal grand jury regarding compensation and the other from the OIG about Medicare cost reporting. Top
Woman's Med Ctr. v Bell
5th Circ.
Texas physicians challenged an amendment to a abortion licensing law stating those who perform over 300 abortions a year be licensed as abortion facilities and comply with state inspection and infection standards. The district court granted an injunction against the state but this was overturned by the Circuit court. The rationale was the sate had a legitimate interest in regulating abortion providers to decrease public health risks. Top
Tatman v Ft. Sanders Med Ctr.
Tenn. Ct. App.
Tatman, a Jehovah's Witness, had a unit of a blood product administered following heart valve surgery. The nurse who administered the product knew Tatman's beliefs but forgot about them in the emergency situation. The patient suffered no injury, neither physical nor psychologic, and had forgiven the nurse involved. The jury awarded and the Appellate Court affirmed the award of zero damages. No nominal damages were allowed since the plaintiff's attorney did not ask the court to award any. Top
Goodrich v Aetna
The famous California Weeping Widow case that Aetna lost to the tune of $120.5 million has been settled out of court. The final settlement has been surmised to be in the $20 million range. Originally the widow of Aetna's "malice, fraud and oppression" was awarded $4.5 million in damages and $116 million in punitive damages. After the case was tried Aetna's CEO stated that "you had a skillful ambulance chasing attorney, a politically motivated judge and a weeping widow. That's no way to get justice and certainly no way to manage a trillion dollar industry." Bad move. 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.