May 15, 2006 Recent Legal News


Electronic Records


Peer Review





US Merit Protection Board

Dr. Jonathan Fishbein has lost his job at NIH for whistleblowing.  He sued and was denied reinstatement by the NIH.  After the suit and it was found that the government had wanted a cover-up he was reinstated and the lawsuit was settled.  The new ruling states that even the higher paid Title 42 consultants are protected under the whistleblowing statute. 

Szebo v UC Davis

 Dr. Szebo blew the whistle on UC Davis' Sacramento clinic billing and scheduling.  Several weeks later the Orthopod was transferred to another facility and took away his block time.  This was done by the medical school dean, Dr. Silva.  Dr. Szebo filed a grievance, he was tenured, and the Academic Senate ruled in his favor that he was retaliated against.  This was then reconfirmed after the University asked for reconsideration.  After this the Chancellor of the University rejected the findings.  This led to the suit for $2.5 million general damages and $1 million punitive damages against the two administrators and the University. The University deserves to pay.        Top

Electronic Records

v US
To Be filed

Hacker entered the Pentagon's health insurance system and gained access to 14,000 medical records.  The law suits should be coming soon. 

v Aetna
To Be Filed

Another laptop was stolen.  This one had the medical information of 38,000 Aetna members.  At least this one was pass-word protected.  Aetna is paying for credit monitoring services.          Top


Patients v Scripps
To Be Filed

A nurse is no longer working at Scripps Hospital in La Jolla after she was confronted for not sterilizing instruments properly.  This meant that about 300 people were potentially infected with HIV or Hepatitis.  The California Department of Health is now investigating the hospital.  The nurse only used a two step and not a three step process in the sterilization. 

Hopkins v Hurley Medical Cntr.
Mich. Ct. App.

 The patient had an elective hysterectomy and was discharged three days later.  She was readmitted several days later and died on December 25, 2001from a ruptured bladder.  The estate sued the hospital and the physicians. The suit was filed on July 21, 2004, after the two year statute of limitations for wrongful death.  The plaintiff stated the underlying tort of malpractice had a five year statute and so the case was not time barred.  The lower court ruled for the defendants.  The upper court, in an unpublished opinion, overruled and stated that there was judicial tolling and the suit could go forward.

Vinyard v Scripps
Cal. Ct. App.

The patient sued the hospital for the negligence of a United States Naval resident who was training at the hospital.  The Court stated that there was no agency between the physician and the hospital so there was no liability.  He was not supervised by anyone on the staff and was paid by the Navy.  The hospital could not unilaterally dismiss the resident.

Diggs v Novant Health
NC App. Ct.

The patient sued the hospital for the negligence of an anesthesiologist.  The patient did not choose the physician and the hospital consent form stated that there would be an anesthesiologist assigned.  This allowed the court to state there was a potential liability to the hospital.

Hall v Dartmouth 
New Hamp. Supreme Ct.

There was a wrongful birth claim against the hospital.  The jury awarded $2.3 million.  The Court overturned the decision and stated that since the hospital had detected a non specific potential birth defect in the second trimester and told the patient, the hospital could not be held liable for the patient's decision to go forward with the birth.  

Jenkins v Pensacola 
Mississippi Supreme Ct.

Woodson was a patient in a nursing home owned by Pensacola. The estate sued for wrongful death alleging that injuries received in the nursing facility led to the death.  The trial court dismissed the suit since the plaintiff did not alleged specific dates for the alleged torts and that was necessary for the statute of limitations  to apply or not.  The Supreme Court ruled that the underlying tort is the one whose statute of limitation should be applied not the wrongful death.  Since Pensacola pled the statute as an affirmative defense, it is up to them to prove which of the actions did not fall within the time period.

Patients v US
To Be Filed

A recent study showed that the VA system has gone from the doormat of medicine to a front runner due to their information technology.  They may have information but they still do the dumbest things.  The most recent is not sterilizing the sleeve that is used for prostate biopsies.  The VA is turning this into a promo for it s technology be showing how they can notify those potentially infected.  

Stewart v Renova Health 
Florida State Ct.

Mrs. Stewart had surgery and ended up with gangrene, maggots and a partial amputation of a leg.  She was awarded $1.27 million but the question is who is going to pay.  The hospital is now under new ownership but they should have purchased it contingent on the liabilities. 

Sherwood v Danbury
Conn. Supreme Ct.

It's hard to believe that a 1985 case is now being decided.  in 1985 the plaintiff had a blood transfusion and developed HIV.  The plaintiff sued the hospital.  The plaintiff lost since the physician and not the hospital had the duty to discuss the risks of a blood transfusion with the patient.  As an aside, by 1985, most or all blood banks should have been testing for the virus.        Top  

Peer Review

Carter v Bluecross Tenn.
ED Tenn.

Carter had a peer review hearing and loss of credentialing.  Carter was notified that there was to be a report to the Data Bank as required by law.  Carter stated in a suit for an injunction that the report would be a violation of HIPAA.  A creative but losing argument.  There is no private right of action under HIPAA. 

The 2nd Circ stated that the Protection and Advocacy Act for individuals and Mental Illness Act  (PAIMI), took precedence over the state peer review protection statutes.  The reason the court gave is that the peer review records were for an investigation and not litigation.         Top


Lawrence v Washington State
Wash. Ct. App.

Lawrence, a neurosurgeon, was accused of unprofessional conduct.  The charges were filed prior to any investigations. After the filing and an investigation all charges were dropped.  Lawrence sued for a hearing to clear his name.  The Court stated that since the charges were dropped his name is cleared and he has no right to sue. 

Zahl v New Jersey Board
   New Jersey Supreme Ct.

 Dr. Zahl, an anesthesiologist, had his license revoked for the alleged violations of falsifying medical records and overbilling.  He had a hearing before an ALJ and lost.  The Board agreed due to the long history of dishonest acts.  The appellate court ruled the Board's decision had been over harsh and remanded it for further hearings.  On appeal to the Supreme Court, the high court reversed and stated the repeated acts were enough for license removal.          Top


Hoffman v Tonnemacher

Hoffman went to the ED of Memorial Medical Hospital and saw the ED physician.  She complained of fever, chills and cold symptoms.  The patient had and the ED physician was aware of the patient's history of a fever of 106 in the ambulance, her prior splenectomy and her Hodgkin's.  After an exam which did not include blood or urine cultures she was sent home on antibiotics for bronchitis.  She returned to the Ed the next day with new symptoms and in fulminate sepsis.  She survived but had permanent damage.  She sued for med mal and EMTALA.  The inappropriate screening was tossed since two physicians had testified at deposition that the screening was adequate.  The problems with the exam are potential negligence issues but not EMTALA violations.  The court allowed the EMTALA allegation to stick since there was a fact question whether the patient was treated in a dissimilar manner than others who had cultures and the physician had not followed the hospital's policy to have physicians rule out or conditions they suspect a patient may have such as a bacterial infection.  Dumb hospital and hospital attorney.        Top


Alliance v FDA
DC Circuit

An alliance for terminally ill patients sued the FDA regarding the rights of a terminally ill patient to access a drug that has not passed not only the FDA but a Phase 1 trial.  The court turned Cruzan on its ear by stating the patient had a fundamental right to assume the risk of an investigational drug.  This sis a fundamental right of self preservation that required a narrowly tailored compelling government interest to overcome.  The Court cited the Glucksburg opinion of the US Supreme Ct.  The suit wanted the same access to the drugs as those who had access to it via a Phase 2 study.  This is an issue of fact that needs to be decided.        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.