November 1, 2006 Recent Legal News




Peer Review





Baise v Methodist Hospital

Mrs. Baise of Indianapolis, Indiana was temporarily paralyzed when she was was given an epidural for labor.  The epidural which was supposed to be given over 10 hours was given over one hour instead.  If the hospital name is familiar, it is the same one that killed three premature infants recently with another medication error.          

Sytsma v Haskell

Mrs. Sytsma had a vertebral fusion by Dr. Haskell, who was the former Milwaukee Bucks team physician.  X-rays done later showed the doctor operated on the wrong level and fused the wrong vertebrae.  The mistake was never told to the patient and she had corrective surgery done by another physician.  She will need more surgery in the future.  Dr. Haskell states the fusion was appropriate but part did not take.  

Jackson v Louisiana
La. Supreme Ct.

The patient had a TAH and BSO.  She did not consent to a surgical induced menopause and sued for malpractice and lack of informed consent.  The trial court awarded her $25,000 for lack of informed consent for lack of consent and dismissed her malpractice charge.  The Appeals Court agreed and the Supreme Court reversed stating that if a reasonable  patient consented to a TAH she would have consented to a surgically induced menopause. No damages. 

Patients v VA
To Be Filed

The Minneapolis VA found it was not properly sterilizing its prostate biopsy tool.  It has sent letters to about 800 men telling them they may be at risk for HIV and hepatitis.  The VA states they would test the people for the diseases.  This is only one of many VA hospitals that had this problem. 

Simmons v Ghaderi
Ca. Ct. App.

Simmons sued Ghaaderi for medical malpractice for wrongful death.  The physician was covered by CAP-MAP.  There was a mediation where the physician attended along with a claims specialist for the insurance company and an attorney for the insurance company and a Cumis Counsel "an independent counsel provided by the insurer contesting coverage but still providing a defense.  The law states that if covered by an insurance policy can only be settled by a signed consent.  The claims adjustor gave a consent to the physician prior to the mediation and it was signed.  The form stated that the limitation of settlement was $125,000.  The p[hysician went to another room while settlement talks were in progress and the parties agreed on the full amount.  The physician when told of the shenanigans of the insurance company said she revoked her consent and left without signing the agreement.  The courts agreed with the insurance company and the plaintiff and the money was paid on her behalf.  she was reported to the NPDB.  This case serves as a warning to others insured and undergoing mediation to hire their own attorney to be present for all discussions.  It is obvious that this insurance company did not have the interest of the physician at heart.

Earlington v Anastasi
Conn. Superior Ct.

In what is believed to be the highest verdict in the history of Connecticut, the plaintiff was awarded $2.7 million.  There was an additional $600,000 in interest after the defendant rejected a $1 million proposal.  The case involved a pregnancy and alleged that the physician failed to evaluate the pre-birth size of the fetus and used a vacuum extractor causing Erb's Palsy.  The trial lasted 2 1/2 weeks and the jury deliberated for three days.  The jury gave the money so the child would be cared for.  They stated the family was a humble and solid family who believed their faith would prevail.      Top


Hospitals v Blue Cross

The hospitals of California are engaged in a class action suit against Blue Cross for violating state law in authorizing care and then refusing to pay for it.  This comes out of the Department of Managed Care blasting Blue Cross for canceling individual policies that shouldn't have been cancelled.  The suit asks for payments withheld for the past four years as well as an injunction to forbid the action in the future.  The Department has a policy that insurers must pay for claims authorized whether or not they later revoke the policy. 

Blue Cross of California has seen the error of their ways and is backtracking as fast as it can.  They have agreed to settle 70 law suits against it for their egregious canceling of individual policies with no truly good reason.  If one is cynical one may believe that this is due to pressure put on it by the State and its recent $200,000 fine for canceling one policy.  Blue Cross paid money to all of the claimants but the amount is confidential.

 Please see the story regarding Kaiser in this month's Recent News section.

Patients v Virginia Mason
Wash. Superior Ct.

The uninsured patients sued Virginia Mason in state court for the hospital outpatient department charging more than at the hospital freestanding clinic.  The hospital was supported by an amicus brief by the AHA.  The hospital won part of the case on summary judgment regarding the higher price but lost and will go to trial on the issue of non disclosure of the price differential.   

Physicians v Blue Cross New Jersey

The physicians who sued New Jersey's Blue Cross and Shield for underpayments will get no money but will get their attorney fees paid and the HMO will "continue significant business practice improvements".   

San Francisco v Brown & Toland

 The city had sued the IPA over its exclusive contract with physicians that would not allow many Chinese living in the Chinatown district to receive healthcare.  The IPA backed down and rescinded the exclusive contracts allowing the physicians to belong to other IPAs that service the Chinese community.  Some medical groups think they are all powerful and end up with egg foo young on their face.  

Brockovich v Hospitals

 Erin Brockovich, the the same one as played by Julia Roberts, is the lead plaintiff in a case against about 30 hospitals.  They are suing for false billing for care that was due to medical malpractice and therefore not medically necessary.  They have not named any people harmed nor any specific incidents.  The CHA calls it a fishing expedition.  They were right.  The case got tossed since Brokovich had no standing to sue.

Westside EKG v Humana
    Florida Supreme Court

Westside sued Humana and Blue Cross and the Supreme Court stated the case may go to trial.  The issue is the physicians contention that they were not paid properly for their bills.  This is the same issue that Orthopod Peter Merkle won at the state Court of Appeals several days before the Westlake verdict.  Merkle is now seeking class action against the insurers.  The issue is whether or not state law gives the right to enforce or challenge state laws in the courts.  

Illinois v Amerigroup
D. Ill.

Illinois sued the medicaid managed care company, Amerigroup, for illegally omitting pregnant women and other high risk people from their rolls.  The fraud cost the insurer $48 million which will be tripled to $144 million plus a potential for an additional $200 million since it filed more than 18,000 false claims within Illinois.  This is a whistleblower suit and the sole whistleblower will reap between $21 million and $36 million. He was fired from the company and then filed the federal suit for filing false Medicaid claims.  The verdict will be appealed.       Top


US v Skripka

The federal court convicted Drs. Charles Frank Skripka and Jayshree Patel along with two DME owners for healthcare fraud.  The Houston, Texas, convicts schemed to defraud the feds by prescribing motorized wheelchairs for people that didn't need them. 

US v Northside Hospital

Northside Hospital in Atlanta has agreed to pay $5.72 million to settle the civil claims that it illegally provided employees to physicians companies.  The companies will pay an additional $650,000.  This was a whistleblower suit by a former CEO and a former office manager.  The physicians were paid for their management duties at rates that far exceeded their expected rates.  The physician companies and hospitals will also pay $400,000 in attorney fees for the whistleblowers.  The two whistleblowers will split $1.2 million.   

Massachusetts v MEGA Ins.

The Massachusetts AG has filed suit against the insurance company.  The insurance company is a Texas organization that sells cheap medical insurance in Massachusetts.  They are being charged with false advertising and improperly denied patient claims.  MEGA and its sister organization Mid-West Life are owned by HealthMarkets.  These two subsidiaries have had hundreds of complaints against them by consumers in various states for not paying claims and not explaining.  The AG states that MEGA did not cover mandated claims such as contraception, pre existing conditions and unfairly denied coverage. The company has been fined in various states for various violations.

Debartolo v HealthSouth

Dr. Debartolo was a surgeon and an investor in a surgical center.  He quit practice and was asked by the Center to return his shares in the Center.  He refused stating that Center's action constituted anti-kickback.  The Court did not agree.  The rule of the Center was that one need to get 1/3 of their income from their work at the Center.  The Court ruled that the anti kickback rule was to protect Medicare members and that the physician was not a member of the class and had no standing.  There was no private claim of action under the law. 

US v Medco

Medco agreed to pay $155 million to settle allegations that it received kickbacks and defrauded the government.  This was another qui tam lawsuit.  Here the three whistleblowers will receive attorney fees plus $23 million.      Top

Peer Review

Schindler v Marshfield Clinic
WD Wisc.

Dr. Schindler, a neurosurgeon, sued the Clinic for wrongful termination after one surgical event.  The clinic asked for HCQIA protection and won as far as the MEC is concerned but the individuals on the professional review committee as there were disputed facts regarding the sufficiency of the investigation.  These facts need to be decided by jury.  Trial soon.

Cowett v TCH Peds
Ohio App. Ct.

In a terrible decision the Ohio Appellate Court affirmed the lower court's decision in granting summary judgment to the group.  The Court used as its rationale the first prong of HCQIA.  It forgot that the four prongs are conjoined with "and".  The court forgot that one of the prongs is that it need to be reasonably believed that the action was warranted by the facts.  Here there was presumed bad faith peer review and the court agreed that bad faith may be present but it made no difference.  I hope this gets taken to the next level. 

Paul v Theda Clark Med Ctr.
7th Circ

 A neurosurgeon was non board certified and denied advancement to active staff.  The hospital required that all surgeons be board certified.  He sued on racial discrimination grounds and lost since there was no evidence of discrimination.  The hospital was a Level II trauma center and that designation requires all trauma neurosurgeons be boarded.  He was not eligible for trauma call and so was not eligible for active staff.  He failed to prove that any other non board certified were allowed to operate and that he was qualified for active staff since he was non certified.      Top


US v Edwin

Dr. Parambaloth Edwin, age 66, was convicted and sentenced to six months in prison for failing to keep accurate records of thousands of prescription pain killers that he dispensed.  The Wilmington, Illinois physician was also fined $5000.  The government could not prove its case that he was responsible for the deaths of several people who took the illegal narcotics..  He also agreed to a loss of his license until April 2009.  

NY v Allick

 Noella Allick, an unlicensed baby nurse, was convicted and sentenced to prison for shaking a baby causing brain damage.

NC v Hill, RN

Sally Jordan Hill, nurse anesthetist, was arrested for killing Sandra Joyner, a plastic surgical patient in an outpatient facility.  The patient died following a routine procedure and the plastic surgeon settled with the family.  All knew the there was animosity between the two women as Hill believed that Joyner had stolen a boyfriend from her during high school.  She continued to carry this grudge. The state medical board referred to Hill as grossly negligent and pulled her license.  This all happened five years ago and the physician was just cleared.      Top


Hooper v Columbus Health
Alabama Supreme Ct.

In another showing of the bad faith of hospitals toward their physicians, The Columbus Regional Healthcare Systems had in their contracts with their employed physicians that they would pay the premiums of the standard rate.  This physician was in a high risk area of OB and the hospital refused to pay the full payment which because of a law suit her first year went from $15,000 to $38,000.  The hospital only paid the original $15,000.  Hooper then left and after one month to open a new practice.  The hospital refused him privileges due to "abandonment".  He voluntarily resigned his privileges. The physician sued the hospital and the trial court went for summary judgment for the hospital.  The Supreme Court stated the physician was right.  The hospital won the important issues of a conspiracy to prevent Hooper from practicing and the tort of wanton conduct for attempting to blemish his record.

Litwinczuk v Palm Beach CV Clinic
Fla. Ct. App.

The physician was recruited to the clinic and signed a contract which contained a non-compete clause for two years.  He resigned for various reasons and opened his own office several blocks away from the clinic.  The Clinic filed for a temporary injunction and won in the trial court.  The physician appealed since he claimed that the Clinic could know its monthly damages.  The Clinic manager disputed that since he did not know what the physician was charging his patients.  The Court ruled that even if the manager was lying and that he could determine the physician charges it would not take into account the Clinic's investment and associated goodwill.  The Court affirmed the temporary injunction.        Top


Community Health Care v Illinois
Ill. Ct. App.

Community Health Care had their property tax exemption revoked by the Illinois Department of Revenue.  This was upheld by an ALJ but the trial court reversed.  The court of appeal reversed the trial court and stated that the clinic only used the property for community purposes 27% of the time so it did not qualify for a property tax exemption.        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.