May 15, 2010 Recent Legal News





Peer Review




US v Zhou

Hupong Zhou, a former UCLA employee who admitted to reading celebrity health files was sentenced to four months in prison.  There were four misdemeanor offenses.  He was notified of his impending termination and then began his reading of multiple medical files, accessing the system 323 times. 

Fink v MXenergy

 Mrs. Fink has a strong family history of breast cancer.  She had a genetic test that showed she had the breast cancer gene.  She made the decision to have a double mastectomy and upon return from her surgical recuperation found that her duties at the company were being limited, then demoted and finally fired.  There is a federal law that does not allow employers to consider genetic testing when making promotions, demotions or firings.  The company would not comment on the case.    

Patients v Bowling Green
To Be Filed

Again, those who state electronic medical records are better for privacy than written records have been rebuked.  Bowling Green Medical Center has notified over 5000 patients that their medical records have been compromised.  A computer hard drive was stolen from the hospital's mammography unit.  The information was not encrypted.  The hospital is urging patients to monitor their credit reports monthly.  I saw nothing of the hospital's willingness to pay for this monitoring.         Top


Castaneda v Hui
US Supreme Court

The case involved a immigration detainee, Francisco Castaneda.  While in custody he continually complained of a sore on his penis.  He was give pain pills and boxer shorts.  He was seen by four specialists who all recommended a biopsy.  After the last consultation, Mr. Castaneda was released.  He presented to an ED and had a biopsy which showed cancer.  The penis was amputated but the cancer had spread and he died less than a year later.  The case centered on the ability of a detainee to sue individuals or are they limited to sue the federal government under the Federal Tort Claims Act.  The unanimous decision was they could only sue the US.  The feds had already admitted negligence so the family is limited to $250,000.

Cregan v Subbaro

Mrs. Cregan came from Ireland in 2005 to obtain a face lift from New York plastic surgeon Michael Sachs.  She went into cardiac arrest several hours post op and died.  The family sued the surgeon, anesthesiologist and nurse.  The surgeon settled for $2.1 million and the nurse settled for $1 million.  The anesthesiologist would not settle and went to trial. Dr. Madhavarao Subbaro defended himself for leaving the clinic and the patient in the charge of the nurse by stating the nurse should have called 911.  The patient died of a blood clot in the pharynx that moved to the trachea and caused difficulty breathing and the cardiac arrest.  The jury had not been told of the prior settlement by the nurse and Dr. Sachs.  What Mrs. Cregan did not know was that Dr. Sachs had been sued for malpractice 30 times in the past.  He surrendered his license in 2008.   

Bono v Staten Island Univ. Hosp.

Ms. Bono was diagnosed with pancreatic cancer.  He went to the above hospital since they boasted in their advertising an 90% success rate.  Mr. Bono paid $17,500 upfront, underwent stereotactic radiotherapy and died two years later.  The suit is the only one of twenty filed that will go to trial since she claims that he never had cancer to begin with.  The hospital opened an office in Naples, Italy to get patients for the hospital.  The suit claims that the physicians never saw the biopsies.  The physician, Dr. Gilbert Lederman, has paid out money t settle false advertising claims and has been released from the hospital staff.  

Tanner v Horizon West Healthcare
Jury Verdict

A jury stated that the nursing home was guilty of elder abuse against the patient and gave a $1.1 million verdict in compensatory damages and an additional $28 Million in punis.  The home is correctly contesting the damages.   

Thomas v Hosp Bd Directors of Lee County
Fla Dist Ct

The plaintiff sued the hospital for outrage.  She died post op hip surgery from cardiac arrest.  She was injected with a lethal dose of a med to treat tachycardia and hypertension.  The people involved colluded to cover up the cause of the cardiac arrest.  During the funeral the medical examiner demanded the body be returned when he learned of the real cause of death.  The cause of death was finally listed as Esmolol toxicity.  The lower court said the family may sue for med mal but not the remainder of the causes.  The court of appeal said the hospital actions were so atrocious as to rise to outrageous (intentional infliction of emotional distress).  This should lead to a huge settlement or massive loss at trial.    

Lips v Scottsdale Healthcare Corp
Ariz Supreme Ct.

The plaintiff had a hip replacement that failed after 17 months.  During the repeat surgery to replace parts of the prosthesis the hospital was asked to safe the parts since the plaintiff was going to consider suing the manufacturer.  It was found that the hospital lost the parts. The hospital was then sued for spoliation of evidence.  The Supreme Court ruled that in Arizona there is no third party negligent spoliation of evidence.  There needs to be intent by the defendant to disrupt or injure the plaintiff's lawsuit.  Such was not the case here.  They were only negligent.     Top


Morris v City of Colorado Springs
D Colo

A nurse alleged a hostile work environment against the hospital run by the city and a surgeon who worked there.  The nurse alleged the surgeon had hit her and had thorn blood tissue at her during surgery. She is seeking the names of other nurses who have complained about the surgeon as well as the ability to take photos of the OR where the incident took place and the work overtime for nurses in order to use in her wage loss claim.  The court allowed all the above except that the names of the nurses in any complaints would be redacted as they are not relevant to the plaintiffs suit.  

Chacko v VA
To Be Filed

Dr. Anna Chacko posted a blog on the internet blasting the Pittsburgh VA for firing her in retaliation for reporting the VA to the FBI and other officials for exposing patients to excessive radiation, up to twice the acceptable level during cardiac testing.  She blamed the officials including Dr. Mona Melham, vice president of clinical support. Dr. Chacko went on to state that the VA purchased inferior equipment and favoritism to certain physicians.  Dr. Chacko was terminated twice for speaking out.  The first termination was reversed after Congress intervened.  Dr. Checko also accused the 
VA of purchasing without medical knowledge an inferior linear accelerator for $600,000 and that was a waste of money.  She went on to claim that after the equipment arrived there was inadequate and sporadic testing of the equipment.    


Johnson v Portz
D Del

In a great case to show the fallacy of having lots of bullet points in what to do in a medical situation, the court stated that summary judgment should be not given to a hospital in this case.  The hospital in a case of a heart attack did some but all of the enumerated items on its list.  This means there are issues of fact to be determined.          Top

Peer Review

Schneider v Flood
Virgin Islands

In yet another example of a physician caught in the web of a kangaroo court, Dr. Schneider was working at the government hospital in the Virgin Islands when he received a letter from the medical director that they were going to review a procedure that the physician had performed.  The MEC also notified him that they were going to review the procedure.  Then without any hearing or other due process he was notified almost a year later of the decision and was to be reported to the NPDB.  Dr. Schneider rightly sued the hospital and the physicians involved for both a TRO to prevent the reporting to the Bank and for a hearing as required by HCQIA.  The court granted a TRO on the Bank but without explanation denied the requirement for a formal hearing as per HCQIA.          Top


Washington DC v United Medical Ctr

A superior court judge agreed with the city that the hospital is a money pit and should not be taken over by the city.  Originally the court ordered the takeover and then saw the error of their ways.  The hospital is jointly owned by the city and a for profit company.  The company believes the problems of the hospital are because the city has not paid enough for Medicaid patients.  The hospital is currently losing $1 million per month.        Top


Provencal v Commonwealth Connector
Mass Supreme Ct.

The plaintiff, a husband and wife, were employed and were offered healthcare by the employer but could not afford their portion of the premium.  They wanted to get into the Connector but were disallowed.  They sued.  The high court stated even though the couple's income were well within the range of the Connector threshold, they could not join because of the 33% offering of coverage by the employer.  The Connector does not have to offer any waiver to the rules just because someone is poor and should be in the program.  Since the Legislature did not specifically allow this it can not be.  Does this sound like it will happen again under Obamacare?  You bet your sweet bippy.        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.