April 15, 2012 Recent Legal News



Peer Review and Employment




Springs v Texas

A federal judge ruled that the Texas cap on non-economic damages is legal.    

Ivy v St. Tammany Parish Hospital
La Ct App

Ivy presented to the ED with a fractured penis.  He was examined and the on-call urologist consulted.  It was determined that he was stable and the hospital had no facilities to treat him.  He was asked to call the urologist in the morning.  He sued under EMTALA.  The court ruled for the hospital as he was stable and therefore no emergency condition existed.  As a urologist, I can state that Ivy could be treated at any hospital since it only takes an operating room and routine staff to open and suture the ruptured penis.  I believe this was a potential EMTALA violation, unless he had the fracture for a significant amount of time and it truly was not an emergency.   

Brown v St. Mary's Health Center
To Be Filed

Brown went to the hospital, the last of three, complaining of leg pain.  She was examined and tested. She was asked to leave but would not.  The police were called and she was arrested for trespassing.  She died in her jail cell soon after.  She was homeless and seeking help for mental illness.  The cause of death and the leg pains were clots.  The patient's mother will soon sue. 

Patients v Sheridan Memorial Hospital
To Be Filed

The Wyoming hospitals has notified 307 patients that they need to be tested because the hospital did not follow their own nor the manufacturer's recommendations on sterilizing a reusable airway.  The hospital recommends testing for Hepatitis B and C along with HIV.  The hospital will do the tests for free but the tests will be drawn at a private lab. The hospital is now using disposable airways.  

Lamacchia v Schwartz
NY Ct. App

 The plaintiff sued Dr. Schwarz and Good Samaritan Hospital for the death of his wife after the insertion of a port-a-cath.  Plaintiff claims that the hospital held a peer review after his wife's death and terminated Dr. Schwartz.  They requested the credential and peer review records.  The trial court rejected the request but the court of appeals partially reversed to have the trial court hold a en camera review of the records to see if there is an exception to the peer review statute.    

Crocker v Scott and White Hospital

 Crocker had surgery at the Texas Hospital and a foreign bodfy was left in the patient.  The hospital admited the error and attempted unsuccessfully to settle.  The case is going to court or a higher settlement.        Top


US v Wellcare Health Plan

The insurance company will pay $137.5 million to settle allegations of fraud by the feds.  It was accused of falsely stating how much money it was spending on healthcare to not have to pay money back to the insureds.  It was also accused of cherry picking patients, operating a sham investigating unit and falsified information regarding their call centers.  The settlement also makes them pay an additional $35 million if they are sold or acquired within three years.  This is the second problem for the insurer in two years.  Two years ago they lost $80 million for other problems. 

Pontiac, Michigan v Blue Cross/Shield
DC Mich

The court dismissed the antitrust claim of the city against the insurer regarding the insurers most favored nation clauses.  This suit does not affect the other suits against the insurer by the DOJ or the State but it is the same judge that will hear all the complaints.  The judge said that the insurer was a vertical and not a horizontal conspirator and so can not be a competitor.  He also dismissed the claims against the hospitals as their was no proof of conspiracy among these horizontal competitors.   

US v Tenet

Tenet Healthcare has agreed to pay $43 million to settle changes by the feds that they billed Medicare more than necessary for inpatient rehab.  

Gentiva Healthcare v Sebilius

The DC district court ruled that the secretary can allow a contractor to use the secretary's extrapolation methodology in potential fraud cases against a healthcare organization.  This does not need notice and comments.  

US v Stein

  Stein pled guilty to fraud by billing for 900 nasal endoscopies on a patient when only a few were done.  He was sentenced to 24 months in prison and ordered to pay $725,156.45 plus restitution of an equal amount to the insurer.  He also lost his medical license.          Top

Peer Review and Employment

Cornu-Labat v Merred
ED Wash

There is more than California with the dreaded SLAPP suits.  Washington state has it as well.  In this case a hospital administrator fired the Chief of Staff and after the administrator talked about it the physician sued.  He lost, not on the merits, but because Washington has the law that states that people who make statements to governmental or other agency that would be interested in the issue gets immunity.  Here the administrator told the police and public high school officials that the physician violated a TRO.

Williams v County of Los Angeles
Ca Ct App

Dr. Williams, a female Black physician at the hospital owned by the county, was given a different assignment after multiple complaints were lodged against her for her demeanor.  She took this as a demotion and stupidly sued for discrimination under state law.  She had no evidence that would support her case and not only lost in the trial court but was ordered to pay the hospital $186,000 in attorney fees.  She appealed and lost not only the case again but also more money as she was ordered to pay the hospital costs. 

Freilich v Upper Chesapeake Health
Maryland Ct App

The Maryland high court upheld the ruling dismissing Dr. Freilich's suit against the health system that terminated her due to HCQIA immunity.  All the medical credentials committee and MEC said she should be kept on.  The board terminated her and her peer review session was a litany of  complaints against her but they also said she should be kept on.  She had already been terminated for unprofessional behavior in one hospital within the system. She sued but lost due to not being able to overturn the four prongs of HCQIA by the preponderance of the evidence. 

Salamon v Our Lady of Victory Hospital

The Victory Hospital was not on this occasion victorious. Dr. Salamon sued for discrimination and the question was was the physician an employee of the hospital.  She had sued the hospital and individual defendants for sexual discrimination.  The hospital argued that the gastroenterologist was an independent contractor and therefore not a legal plaintiff.  She stated that the hospital via their quality control and peer review were in control of her practice.  The court ruled that this is something for the jury to decide and summary judgment was denied.       Top


US v Trinity Health Systems

Iowa's Trinity Health had to pay a fine of $20,000 penalty and $198,000 in damages to individuals they harmed by not having sign language available.  They also need to train all their staff.  They used a seven year old girl to interpret for her mother. 

Hospitals v CMS

CMS settled with the suing hospitals for a total of $3 Billion going to over 2200 hospitals across the country. This is to settle a ten year dispute over reimbursement rates over area wages to make sure rural hospitals were adequately compensated.  Medicare made a math error and would not admit it. A district judge originally agreed with CMS but that was overturned by an appellate judge.          Top


Patients v Utah
To Be Filed

Utah had its Medicaid computers hacked.  The thieves got away with 182,000 records and about 25,000 Social Security numbers.  This was on a server that had minimal password protection, possibly enough to show negligence.  Utah will offer one year of credit protection to those Medicaid recipients who want it.  Many of the numbers stolen were those of children.  The state is paying TransUnion to freeze their credit until they are old enough to need it.  The hack came from eastern Europe.  After the above was posted a new story came out saying 900,000 people had their personal information, including social security numbers, stolen.  The feds are now looking into if the State should be fined.

Patients v St. Joseph Hospital
Class Action Filed

A bottom feeder has filed a class action suit against the hospital system for their negligent allowing of information on 38,000 patients to be searchable on-line.  The bottom feeder is asking for $1000 per patient of which the bottom feeder will take a huge chunk.     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.