October 1, 2005 Recent Legal News



Peer Review





Fraud and Abuse

Hospital Billings



Lee v UNC
To Be Filed

Lee had a finger crushed in an accident.  He went to the local hospital for care.  They are rural and only have part time Orthopedics.  The patient needed a probable transplant and several hospitals were called who all recommended the patient be sent to the University of North Carolina (UNC).  UNC refused the transfer since no local orthopedic surgeon had seen the patient.  Eventually the patient was sent to Duke where the finger was sewn on but no transplant performed.  The finger stub died.  North Carolina is investigating the University and the incident.  During the investigation the state has found three other requests for orthopedic consultations that were refused by the University.  Complicating the matter Duke requested the original hospital again contact UNC and then call back.  This occurred and the conversation taped to show how UNC had dumped the patient.  There will be fines issued and probably a law suit as well.    

Cavender v Sutter Lakeside 
ND Cal.

The patient found a patsy for an attorney.  The patient was an inpatient at the hospital after having a stroke.  She fled the hospital and was found in the parking area.  She was returned to the hospital and refused treatment in the ED.  The family picked her up and took her home where she had another stroke.  The family sued for not stabilizing the patient who refused treatment.  The court stated that EMTALA does not apply to those hospitalized.  It seems like the patient and attorney deserve each other.

Millan v Hosp. San Pablo

In yet another case from Puerto Rico the parents of a deceased child sued two hospitals under EMTALA.  The court stated that both hospitals did a adequate screening but there was not enough data to support the adequacy of the stabilization to overcome the summary judgment.  Top 


Medical Staff v Blue Cross
CA Ct. App.

Blue Cross gave false information to newspapers regarding the physicians and medical staff of Modesto California Doctors Medical Center. After admitting the information given was false they republished the same false information.  When the medical staff sued the medical director (Kamil) and Blue Cross for defamation, Blue Cross wanted the outcome to remain secret so stated that the claim had to be arbitrated.  The trial court and the court of appeals both ruled against the lying Blue Cross.  Interestingly, the court in the published opinion discussed the medical staff as "a separate legal entity.  It is a self governing unincorporated association, independent from the hospital."  This means that the medical staff can not be a third party beneficiary to any contract between the insurer and the hospital.  The ruling states that the "medical staff does not provide medical services, it polices the physicians who do."  This case will never see the light of day.  Blue Cross can not afford the terrible publicity a trial would bring.  They will pay alot of money to the physicians along with a public apology for their lying. The attorneys for the medical staff were the same ones that won the victory for the medical staff against Ventura's Community Hospital and caused the firing of the CEO, Medical Director and a reversal of the Board's illegal actions.       Top

Peer Review  

Gordon v Lewistown Hosp.
3rd Circ.

Gordon was removed from the hospital staff after progressive steps.  He sued and lost on all claims in the lower court in summary judgment except for injunctive relief.  After a three week trial the court also ruled against Gordon.  He appealed and lost again.  The appeals court stated that HCQIA immunity was present for the hospital without exception.  The exception for solicitation was based on the hospital's objective intent in taking action, not the physician's subjective intent.  The court also found that the physician's actions of calling patients of other physicians and disparaging their physician's skills was disruptive conduct that could adversely affect the health and welfare of patients and so the hospital's actions were a true professional review action.

Deming v Jackson-Madison
WD Tenn.

The physician sued the hospital for antitrust, defamation, conspiracy and breach of contract.  The court stated that the physician could perform discovery to determine if the hospital complied with HCQIA.   

Strickland v Cmty. Helath

In this action for negligent credentialing the court ruled for the plaintiff.  If a hospital negligently grants staff privileges to an incompetent physician or fails to investigate complaints and allows the physician to practice is responsible for those subsequently injured. 

Cavila v Patel

The US filed a motion to compel the American College of Radiology report of their visit to a hospital.  The hospital claimed protection under peer review law. Since there is no federal peer review law the US is entitled to the documents. 

Zisk v Quincy Hosp
Mass. App. Ct.

The surgeon sued the hospitals and members of the peer review committee for his loss of privileges.  He had three deaths and had multiple review procedures.  The Court granted summary judgment to the hospital and the peer review physicians.  The Appeals Court agreed due to HCQIA.  The hospital did the dirty deed under the guise of furtherance of health quality and was therefore protected.           Top


Johnson v Jamaica Hosp.
NY App. Div.

The patient sued the hospital and physician for malpractice after going to the ED for a leg gunshot wound.  The court allowed the hospital to be sued since the patient went to the hospital for treatment and not the physician.  The is terrible legal reasoning and makes every person who comes to the ED a potential plaintiff against the hospital when the physicians are as here  independent contractors. 

Price v St. Bernard Hosp.

A jury has awarded the family of a patient $5.5 million.  The patient of the hospital was found on the floor of her room gasping for breath.  She died that day, the day after a C-Section.  An autopsy showed pneumonia.  The suit claimed the OB failed to notice the labored breathing when he examined the patient four hours prior.    

Patients v Dr. King and Putnam General Hosp.
Filed West Va.

The Wall Street Journal reported on September 21 regarding a case of physician lying on his application and a hospital desperate for money and an orthopedic surgeon.  Multiple patients have sued the hospital and the physician for medical malpractice.  The physician lied about his training and the programs he attended were not forthcoming about his time there.  The AMA database was wrong on him as was the NPDB.  The hospital never checked his references verbally.  He now has law suits against him in three states, Florida, West Virginia and Alabama.  This is a story of a great example of why credentialing should be done by the medical staff without the interference of the hospital administration who is only looking at the bottom line. HCA, who owned Putnam, has since sold the hospital but they will be the deep pockets for millions of dollars in settlements.   

Patients v Duke

As I'm sure most know is that Duke and several other North Carolina hospitals screwed up by washing instruments used in patients with hydraulic fluid.  A study of the fluid has now shown cancer causing heavy metals and microscopic machinery metals.  This "independent study" commissioned by the suing attorneys is different from the findings done previously by Duke.  That study showed no problems. It is which set of lying experts will the jury believe.  In a blow to the Universities, a recent article in Arthritis Research connected motor oil and hydraulic fluid with the later onset of rheumatoid arthritis.  The work was done in Sweden.

Barbato v Khetarpal
Trial Ct. Ohio

 A physician was sued and not dropped from the case after the plaintiff's expert stated the physician conformed to the standard of care.  The physician sued the plaintiff attorney and won $6,000.  The money isn't much but the principle is.   

Sanchez v Medicorp Health
  Va. Supreme Ct.

The Court states that the state does not have a theory of apparent agency and the hospital can not be sued for actions of it's independent contractor.         


Comer v Risko
Ohio Supreme Ct.

The estate sued the hospital for the negligence of two independent contractors who misread x-rays showing cancer.  The problem was the attorney missed the statute of limitations to sue the physicians and therefore the court stated could not sue the hospital under the concept of vicarious liability.  Looks like the lawyer needs a lawyer. 

Patients v St. Joseph Hospital

St. Joseph Hospital in South Bend has been fined $20,000 for causing radiation burns in three patients being treated for cervical cancer.  

Attorneys v Physicians

The Florida Attorneys are winning the battle for disclosure of peer review records in med mal cases in spite of legislative attempts to stop the practice.  The legislative effort has been declared unconstitutional since it goes against the ballot measure passed last year by the people who can not push out a chad. Top


Calif. v Luke
Med Board Decision

Caught in yet another lie the Medical Board of California continues to attempt to get rid of physicians who practice pain control as they say they should.  Dr. Luke is losing his license because he gave a large amount of morphine to a patient and the patient died.  The patient ad the relatives all wanted the patient to be more comfortable.  The family supports the decision to attempt to give the dying patient some pain relief.  Dr. Luke has lost before an administrative judge and the Board and is now rightfully appealing the decision.  The Board is doing all it can do to say one thing but act by doing another. 

The California Medical Association had filed a Friend of the Court brief in the matter of the California Appellate Court upcoming hearing on the physicians right to refuse to inseminate a lesbian.  The CMA then withdrew its brief and has attempted to submit another stating that since the California Supreme Court has ruled that businesses treat domestic partners as spouses, the physicians involved should not be held liable for a law that was not in effect when the incident occurred.       Top


Centr. for Reproductive Rgts. v MO
Fed. Ct.

The law lasted one day.  Missouri had passed and the Governor had signed a law restricting abortion in the state and one day later it was stopped.  The new law requires doctors performing abortions to have privileges at a hospital within 30 miles of the place of the procedure.  It also allows a law suit by parents who intentionally cause, aid or assist the minor daughters in having abortions without the parental consent. The judge states the language is too vague and because it could restrict abortions not only in Missouri but also in surrounding states.  This was aimed at Illinois which has no parental consent law.          Top


Anderson v AMA

In a secret settlement the lawsuit between the two was finished.  Anderson was the CEO of the AMA who states he was not allowed to fire the AMA lawyer for incompetence over the infamous AMA Sunbeam endorsement.  The AMA had repeated stated there would be no settlement.  This tells all a ton about the organization.  

Clinch v Heartland Health
Mo. Ct. App.

A medical director in heart surgery  sued a fellow surgeon for tortious interference with business, stating the surgeon complained about the proficiency causing his loss of the chief position.  The director also sued the hospital for antitrust since by the time his contract not to compete had expired the hospital had entered into an exclusive contract with another cardiac surgeon.  The court stated that he had no claim against the hospital for the business decision of entering into an exclusive contract.  The director did present enough evidence to show a reasonable juror that the hospital would not have terminated his contract if the other surgeon had not presented the productivity statistics to the administration.  That can proceed to trial. Top

Fraud and Abuse

US v GlaxoSmithKline

GlaxoSmithKline has agreed to pay $150 million for the inflation of prices of Zofran and Kytril, two meds used to lessen chemotherapy side effects.  The company told providers how to maximize profits on the drugs.  The spread was artificially pegged high due to false numbers by the company that inflated the cost over the real cost.  

US v Garrido & Zamora

Two physicians were sentenced for falsely billing or supplying for medically unnecessary reasons.  Dr. Garrido was sentenced to 33 months in prison, two years of supervision and restitution of $141,000.  Dr. Zamora was sentenced to 27 months in prison and two years of supervised release.

US v AdminaStar Federal

 The subsidiary of WellPoint settled the government claim of overcharging Medicare and other related crimes.  This is a whistleblower case.  They will pay $6 million.  

US v Allied Home Medical

Allied has agreed to pay $1 million for billing for medically unnecessary wheel chairs.   Top

Hospital Billings

Patients v Virginia Mason

I would not want to be the CEO or publicist of Virginia Mason Medical Center in Seattle.  The judge in a case claiming the hospital has severely overcharged for outpatient procedures as inpatients has been certified for a class action.  This means that they will either lose or settle for multiple millions of dollars.  Their defense that others do it will not hold water.        Top


Physicians v Insurers

The Miami Federal judge has approved the settlement between the physicians and Health Net and Prudential.  This is the third and fourth approved settlements against the insurers for their illegal dealings with physicians.  There are another six to go.  Health Net will pay $40 million and then spend an additional $80 million to deal with their computer problems.  Prudential will pay $22 million to improve managed care.  Health Net will also pay an additional $20 million to the attorneys and Prudential will pay $5 million.  Wellpoint and Anthem have also reached settlements that have not been approved yet. The remaining four are the Blues, United, Coventry, Humana and PacifiCare.  The trial is scheduled for January.  

In the Cincinnati area the physicians have also won a settlement with Blue Cross for $106 million for their schemes.  Humana had already been ordered to pay $100 million for its own cheating of the physicians. 

800 patients v U. Missouri

The University of Missouri released confidential medical information to IV Associates, a third party, to keep the patients from leaving the University Health System, Option Care.  The attorneys for the University are attempting an end run by stating no harm no foul instead of stating what they did was wrong. They are also under investigation by the feds for their indisgression.  At $25,000 per record that comes to $20 million.  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.