May 1, 2004 Recent Legal News




Peer Review

Medical Board


Fraud and Abuse







Baker v Wilson Memorial 
NY ( Not Yet Filed)

Baker was undergoing a temporal artery biopsy when the instrument used to coagulate the wound caught the cloth surgical drapes on fire.  The patient was burned on the face.  He underwent an immediate tracheotomy and left the hospital after six days at a nearby burn unit.  There was no apparent oxygen leaking and no obvious problem with the instrument.  The fire was out in several seconds but the hospital was criticized for waiting 90 minutes to call the fire department. 

Franklin v Murray
Conn. Super. Ct.

Plaintiff sued hospital for negligence by anesthesiologist under apparent agency.  The Court said the case could go forward since the hospital had granted the doctor privileges and was listed on the hospital website as a medical staff physician.  This now became a question for the triar of fact, the jury to decide whether he was truly the hospital's agent or not.   

Sprague v Physicians
Maryland Superior Ct.

Who's right?  An 11 month old boy was taken to his pediatrician by a baby sitter and the mother.  There were no signs of trauma and the child was sent home with appropriate instructions.  Later that day the child was taken under the pediatrician's order to the local ED to be evaluated by the ED physician to see if a CT scan was necessary.  The ED physicians and the pediatrician on call both agreed there was no evidence of trauma and sent the boy home.   Three weeks later the baby sitter reached the mother and stated the child was unresponsive.  The sitter called 911 and the baby was helicoptered to Washington, DC where a massive subdural hematoma was found along with an old smaller one.  The suit was for not ordering a CT scan three weeks earlier since this was a case of child abuse by the sitter and possibly could have been picked up prior to the massive bleed.  The jury found for the plaintiff for $5 million.  The case is now on appeal. 

Garcia v Regional Med. Ctr. of San Jose

A suit was filed against the hospital and the emergency room physicians after the patient, a toddler, died following an auto accident.  The father drove the child to the closest hospital which was not a trauma center.  The ED physician transferred the child to a trauma center where she died from internal injuries and blood loss. The transfer was in lieu of calling a pediatric surgeon in to the hospitals which the ED physician states would have taken the same length of time.        

Patients v Hutchinson Cancer Research 
Wash. Superior Ct.

The jury got one right.  They exonerated the Hutch for the their medical research.  This came about from a series of articles by a local newspaper that had little basis in fact.  One patient's family did receive money because the hospital admitted mishandling of the transplant marrow. 

Bownes v Harbor Hospital
Maryland Superior Ct.

A 19 year old female is suing the hospital for misreading x-rays of her knee for "growing pains".  The hospital told the patient that they would call her if there was any abnormality found.  The patient never heard and several days later went to John Hopkins for a second opinion.  When she attempted to get the x-rays to take with her for the appointment she was told they were lost.  When found four months later they had been misfiled under a wrong name and had never been read.  When read, they showed cancer for which there is no cure.  They are suing for delay in diagnosis.

Sapp v Baptist Hospital East
Kentucky Superior Ct.

 The patient is 5 years old, confined to a wheelchair, can't speak and requires around the clock care.  The problem was a birth injury after the use of Pitocin over a prolonged period of time.  The argument was that the drug cut off the oxygen to the fetus.  The jury awarded $27.6 million with 80% assigned to the hospital and the other 20% to the physician.  The physician had previously settled so was not involved in the trial.   The hospital contended that 30 minutes prior to birth the baby moved and shut off the umbilical cord.   

Kelley v Middle Tenn. Emer. Phys.
Tenn. Supreme Ct.

The court ruled the case to trial to determine if there was any patient-physician relationship established.  The facts were that a consulting cardiologist gave a curbside consult to an ED physician,  The other fact was the cardiologist was on call for the patient's regular cardiologist.     

Branson v Comm. United Meth. Hosp.
Ky. Ct. App.

In a suit for negligence against the hospital for a mistake by the ED physician, the court granted summary judgment for the hospital since the physician was an independent contractor.  The court of appeal affirmed.  It found there were nine factors to be looked at for control and employee status.  The court stated that the physician was an independent contractor.  There was no apparent agency since the admitting form clearly stated the independent contractor status.  

Verdicchio v Ricca
NJ Supreme Ct.

 A malpractice action was filed for delayed diagnosis of a malignant tumor in a 17 year old boy.  The jury awarded $8 million which was reduced to $4.4 million.  The court then agreed to issue a judgment not withstanding the verdict since the plaintiff did not prove causation.  The appellate court agreed and the plaintiff appealed to the Supreme Court. The high court reversed and reinstated the jury's verdict.  The court stated that since the facts were for a pre-existing condition actual causation was not needed, only substantial factor.  Only in the Democratic trial attorney states like New Jersey.      

Barton v Buckley
Miss. Ct. App.

The plaintiff sued the physician after a hematoma formed post disc surgery giving permanent nerve damage to the patient's legs.  The suit was for lack of informed consent and poor post-op care.  The physician showed he gave informed consent in the office and the patient signed a hospital form stating he had been given informed consent.  The plaintiff also failed to show that he would not have agreed to surgery if the risks had been explained to him since he did not show that a reasonable patient would not have consented to the surgery.        

Long v Schiffman
Cal. Ct. App.

Plaintiff sued defendant physician after a cervical discectomy and a crooked plate.  A second surgery removed the plate and the patient's symptoms of difficulty swallowing and pain subsided.  The plaintiff sued for malpractice and fraud after the statute of limitations had expired but claimed he did not know about the malpractice until after the second surgery.  The court disagreed and stated he should have known after the first post-op visit.  The appeals court affirmed noting the statute is three years after the incident or one year after discovery.  Mere suspicion is enough to start the statute.  In the fraud action, the plaintiff did not prove any of the five elements of fraud.        Top


Calif. Consumer v Kaiser

This law suit for an injunction was filed against Kaiser and its subsidies under California Business and Professional Code 17200.  Kaiser is accused of "disclosing medical information regarding patients without first obtaining such patient's authorization or otherwise being authorized to do so under the law, by sharing, selling, or otherwise using medical information regarding such patients for a purpose not necessary to provide health care services to the patients and by concealing the occurrence of such practices." Following the actual filed law suit is attached the Northern California Kaiser Permanente Notice of Privacy Practices, a six page document.     

 Citizens for Health v US
USDC Penn.

The plaintiffs sued to repeal HIPAA and lost.  The rationale for suing was the constitutional right to be in control of the patients own medical chart.  They lost since the law did not violate their right of privacy nor their due process rights.  The case may be appealed but I doubt it since every court that has considered the law has upheld it.          

Schiavo v Florida
State Ct.

In the famous or infamous Schiavo case, where a brain damaged woman without an advanced directive has been kept alive artificially with a feeding tube, the court ruled that the legislature passed an illegal law violating the patient's privacy and because it delegated legislative power to the executive branch of the government.  Gov. Jeb Bush immediately appealed the decision and so all remains status quo until the next hearing.  Top


Frazier v Angel Med Ctr.

A intoxicated patient came to the ED after being in a car accident.  He had a serious fracture of his heel.  The hospital could not arrange a transfer to orthopedic surgery and decided to give him care instructions and to follow-up.  He was arrested upon leaving the ED and could not follow-up.  The court said that the hospital had stabilized the patient and EMTALA no longer held.  Case closed.  

Binkley v Edwards Hosp.
ND Ill.

A mother sued two physicians for a discharge of her son from a mental institution.  The case was tossed since individual physicians may not be sued under EMTALA, only institutions. 

Torres v Hospital Ryder 

In the opposite conclusion from the above case and most others, the court ruled that even though the physician may not be included in any EMTALA action, there may be pendant jurisdiction. Since the claims against the physician are so closely related to the claim against the hospital the court can not decide one without the other.       Top

Peer Review

Seitzinger v Community Hlth. Network
Wis. Supreme Ct.

The Wisconsin Supreme Court stated that the peer review hospital rules allowed "legal counsel".  This meant one who is licensed in the state and not one who is not licensed and can not appear pro hac vice.  This is only for a specific case in front of a judge who specifically allows the appearance.  

Webb v Mt. Sinai
Ill. Ct. App.

The Court of Appeals allowed into trial court those documents prepared by the hospital's risk manager even though the Risk Management Committee does some peer review.  The documents were to evaluate the potential legal liability of the hospital for the death of the patient. 

Robbins v Provena St. Joseph Med. Ctr.
ND Ill.

Robbins, an employee of the hospital, was dismissed and sued the hospital for wrongful termination for reporting Medicare fraud and violations of federal requirement for nurse staffing.  He wanted documents from the hospital which were inter-company regarding complaints, investigations and other forms.  The court allowed a balancing test of the need for the documents by the person versus the public interest in protecting corporate documents.  The court allowed the non-confidential but not those documents that were prepared in the expectation that they would be confidential.

Zamanian v Christian Health Ministry
Superior Ct.  La.

Last year Dr. Zamanian sued the hospital and two physicians for defamation in the peer review process.  He won $6 million.  The judge then overturned the jury verdict and the money.  The reason was that the hospital and physicians were shielded from suit by HCQIA.  The judge is allowing a new trial but first there will be an appeal of the judge's decision by Dr. Zamanian.  The rationale for the appeal is that the plaintiff states he proved bad faith or malice.  The Court of Appeal has already agreed once with the plaintiff.     

Sonnino v U. Kansas Hosp.
Dist. Kansas

 Sonnino, a female physician, sued for unequal pay.  She requested during discovery multiple records including peer review records.  The Court agreed she could have them as there is no peer review privilege in Federal law.   

Omar v Jewish Hosp
KY. Ct. App.

A cardiologist resigned from the hospital while under investigation giving rise to a National Practitioner Data Bank report under HCQIA.  The hospital MEC met and recommended that the physician's practice should be reviewed.  The physician then resigned prior to the outside report being completed.  He sued to enjoin the hospital from reporting him to the Bank.  The trial court allowed the reporting since there had been at least an investigation into his practices when he had resigned.  The Appeals court agreed.         Top

Medical Board

Bearman v Superior Ct. 
Calif. Ct. App.

Bearman, MD gave a note to his patient recommending Marijuana for his migraines.  The patient was stopped and presented the note.  The patient was let go but the Ranger reported the note to the Medical Board of California. The Board requested and was denied access to the patient's medical records by the patient and then by the physician acting on behalf of the patient.  The Board attempted an administrative subpoena but was unsuccessful and then got a judge signed court order for the records.  Dr. Bearman again refused and appealed.  The Appeals Court agreed with the physician and the California Medical Association as Amicus stating the Board presented no factual evidence that would allow them access to the record.  The Appeals Court also made the Board pay the Appeals costs of Dr. Bearman.  

Finucan v Maryland Bd.
Md. Supreme Ct.

 After the physician's license was revoked by the Board for immoral or unprofessional conduct.  He argued that that phrase did not prohibit sexual relations with patients.  He lost that one.  He then said the relations did not occur while he was on duty as a physician.  That did not fly either.  His last and again losing argument was that the relations did not impair his ability to practice medicine.    

Parrish v Ky. Board 
KY. Ct. App.

The physician was accused of either having not order certain tests on a patient or having the tests performed by unsupervised technicians.  Her license was temporarily suspended.  She requested an emergency review and this was granted.  At the review the Board also added multiple other charges and these were taken up at a later meeting.  Her license was then permanently revoked.  The physician sued and the trial court upheld the Board.  The Appeals Court affirmed stating her forged letters of recommendations and fraudulent billing practices were legitimate reason for revocation of her license.  

Armstrong v Louisiana State Bd.
La. Ct. App.

The physician was charged with violating the pain rules by prescribing to non-cancer patients controlled substances and failing to document their treatment according to the rules.  He was suspended for two years, suspended his prescription privileges for controlled substances for five years and required fifty hours of CME on pain management along with a minimal fine.  Armstrong had been disciplined on two prior occasions.  He sued to overturn the decision an the lower court affirmed the Board's action.  The Court of Appeal affirmed and stated that the rules of the Board on pain were plain and no expert was required for determining the standard of care.  

Lacey v State Bd.
Mo. Ct. App.

Lacey underwent assessment and treatment for inappropriate sexual behavior with patients. A consent decree between the physician and the Board was entered giving a ninety day suspension and seven year probation.  This included supervised female examinations.  After the suspension, an investigator told the physician that he needed a chaperone whenever he was with a female patient including when just history taking.  This was counter to his attorney's advice.  The investigator then turned Lacey in for not complying with the conditions.  The Board extended the probation by nine months.  The doctor sued and lost and then the appeal.  The Court of Appeal overturned the lower court and the Board.  The court found the rules were misinterpreted by the Board and were ambiguous and the most appropriate reading of the rules was the physicians.          Top


Nemzoff v Baptist Health System

Joshua Nemzoff, a hospital consultant was working under a contract to help Baptist reorganize when five months before the end he was told to stop working.  He is suing the System and the CEO for $4 million for breach of contract and defamation.  The CEO told the Board that Nemzoff was not competent to continue to assist in the restructuring effort.    

B'nai Brith v North Broward Hospital

The Anti-Defamation League of the B'nai Brith charged that the directors of the hospital were anti-Semitic for not promoting Jewish people and for not seeking Jewish business.  This happened after a an administrator was fired for marketing to the Jewish Community.  

Huntington Hosp. v Abrandt
NY App.

Abrandt, a patient, would not pay a bill for hospital services.  The rationale was that the cost did not represent the fair market value of the services rendered.  The court affirmed the lower court in stating tough luck, pay.  When a patient receives services there is a real or implied contract to pay for those services.  There is nothing to state that the hospital can not receive less than it's charges from insurers or government programs.    Top

Fraud and Abuse

Jury Selection

Jury selection has started in USDC in Boston in the criminal trial against eleven corporate people including three senior corporate officials for illegally conspiring to pay kickbacks to physicians to use Lupron.  The trial is supposed to last three months.   

US v Gottlieb

 Dr. Gottlieb, a psychiatrist in Texas, pled guilty of of receiving kickbacks is a wheelchair scam.  The doctor received $85 for approving a federally paid for wheelchair.  He then continued this practice hundreds of times.  He can go to jail for 20 years.    

US v 3 Physician Groups 

Three large physician groups affiliated with the University of Washington have agreed to pay $35 million in a whistle blower case.  The organizations have been accused of illegally billing Medicare for procedures performed by residents.  Several of the physicians were also earlier convicted criminally of mail fraud and obstruction.   Top


Neff v Johnson Memorial hosp.
Conn. Super. Ct.

Neff, a patient, sued the hospital for negligent credentialing of a physician.  The physician had three suits but the patient had no expert witness to define the standard of care of a hospital in evaluation of a physician with malpractice suits.  The patient also sued the hospital for failure of making sure the physician purchased a tail insurance policy.  This was also tossed as the hospital is not liable for the physician making the purchase.       Top


California v Gadsby
License Revocation

A judge revoked the nursing license of a Santa Teresita Hospital nurse after she was accused of two cases of negligence in infant's deaths. She was accused of two counts of misreading prenatal strips, doing episiotomies and delivering babies without summoning physicians. 

Harrison v Sacramento Center for Hematology and Medical Oncology

Harrison was sued by her former employer for violation of Medicare rules.  The jury rejected all claims against the nurse.  An appeal for a new trial was rejected. The Center will now pay her legal bills totaling over $400,000.  The Center had previously paid $325,000 to a former partner after suing him a swell.  The Center has a new attorney.

New Jersey v Cullen
Guilty Plea

 Charles Cullen pled guilty of at least thirteen murders while a nurse at multiple hospitals in Pennsylvania and New Jersey.  The plea was in lieu of the death penalty.       Top 


MDs v Blues of Kansas City
Missouri Ct. Appeal

The appeals court reversed a $3.1 million punitive damage award for the physicians in their suit against the Blues for breach of contract claims.  The court upheld the compensatory claim of $3 million.

MDs v Cigna
11th Circ.

The appeals court rejected the challenge to the settlement between Cigna and those suing physicians.  Cigna was sued for systematically underpaying physicians.  

NY v Excellus Ins.
NY Appeals Ct.

The Court ruled that the state had no right to order the insurer to roll back some of its charges.  The state has a law that allows insurance companies to raise rates within certain parameters without oversight.        Top


Soto v Valley Hospital
Nevada Supreme Ct.

The Supreme Court agreed with the underlying courts that the hospital should be made the temporary guardian for the twin boys born to Jehovah Witness parents.  The boys need transfusions and the parents refused on religious grounds.  The boys are now doing fine at home.        Top


Manny v Central States Pension
ND Ill.

Manny, an employee of Company who has ERISA health plan, is morbidly obese with multiple medical problems made worse by the obesity.  He and his physicians have all agreed that gastric bypass surgery would be medically helpful and necessary.  The plan denied it as cosmetic.  Appropriate appeals were made and denied.  The Court also denied the request since the plan documents expressly stated it did not cove any obesity treatment or surgery.  The court stated there was no arbitrary nor capricious reason for denial but it was present in the documents.

Rapolla V Massa
Cal. Ct. App.

 Rapolla hired Massa, an attorney, to represent him in a medical malpractice case.  The fee was on an hourly basis and reduced contingency.  The patient lost and had paid the attorney $56,868.60 in legal fees and $60,358.22 in expenses.  The plaintiff refused to pay an additional $20,000 in fees and $10,000 in costs for post trial motions.  The plaintiff then sued the attorney for a violation of the medical malpractice act which limits fees to a percentage of the award only.  The trial court ruled originally for the attorney but then granted a motion to reconsider.  In the reconsider, the court ruled that the attorney would have to repay the plaintiff the $37,000 in fees since the agreement was unenforceable.  The Appeals court reversed in part and remanded.  The court stated the arrangement was not illegal and that the court did not have the power to grant a reconsideration in a summary judgment case.  The trial court could grant a new trial since an error of law had occurred.  The court also found the contingency part illegal but severable from the hourly fees and therefore the entire agreement was not unlawful.        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.