October 15, 2008 Recent Legal News


Medical Malpractice



Peer Review


US v Cooper Univ Hosp

New Jersey's Cooper University Hospital in Camden is paying the government a mere $3.85 million for their fraudulent seeking higher reimbursement in the outlier department.  This was a whistleblower case and he was awarded $654,000 for bringing the case to the attention of the feds. 

US v North East Med Services

 The above California health clinic will pay $4.96 million for false claims to the state Medicaid system.  The whistleblower will get $562,000.     

US v Miller

Four officials of Schneider Regional Medical Center in St. Thomas have been arrested and charged with embezzling money from the U.S. Virgin Island hospital.  These include the past board president and three of the former CEO.         Top

Medical Malpractice

Bazakos v Physician
NY App Ct

Bazakos was injured in a auto accident and then claimed he was reinjured by the physician who saw him to render an opinion.  He sued the physician and won filing within the statute of limitations for negligence and not med mal.  The court ruled  there is not a patient physician relationship in this type of exam so it would come under the heading of simple negligence.  

Lumley v University Community Hospital 
Filed Florida

Lumley, a 46 year old overweight female came to the hospital with severe abdominal pains.  While in the ED she stated she need to use the bathroom and a short time later the staff fond a baby in the toilet.  The baby was resuscitated but has residual damage.  The hospital is being sued to provide the child's lifelong medical care.  The suit is in the name of the child and the mother will not benefit.  It is fascinating that neither the father or the mother knew the woman was pregnant or if they did they ignored it.  The mother is now in another state after testing positive for cocaine.  

Nestlehutt v Cole

In this case in Georgia, the plaintiff won in the trial court a judgment of $900,000 for non-economic damages in a cosmetic surgical case.  The attorney is attempting to argue that the current caps for this in the state should not apply to cosmetic surgery.  It should be noted that the side issues of the law have already been struck down by the Georgia Supreme Court and the caps provision is up for decision now.  It make no sense that malpractice in a cosmetic surgery would be any different than malpractice in any other kind of surgery, elective or emergent.  

Doe v Planned Parenthood
Filed Ohio Supreme Ct.

Doe, a 14 year old female, had an abortion at Planned Parenthood without the parents knowledge.  The parents are suing and want the names of other underage females seen in the clinic.  There seems to be no nexus between the case and the request that has been denied by the lower courts.  This is akin to legal harassment.  

Diego v NY Hosp of Queens

Mrs. Diego was in the ED of the hospital and needed a brain scan.  This was delayed for two hours during which time she lapsed into a coma and now has left paresis and uses a wheelchair.  Mrs. Diego sued and the jury awarded $10.7 million.  The hospital is appealing, but I don't know the grounds except they believe they were not responsible.   

Viahoulis v McCarthy

The patient states Dr. Patrick McCarthy of Chicago implanted an experimental device in her without her consent.  She had to have the device removed and now faces a transplant.  The physician also collects very minor royalties for each device implanted ($50).     Top


Restaurants v San Francisco
9th Circ

The San Francisco Restaurants Association sued the City for its healthcare program which forced businesses with at least 20 employees to either pay for healthcare or give a percent of the hourly salary to the city.  This is capped at $180 per employee per month.  The District Court ruled it was against ERISA but the liberal 9th Circuit ruled it was legal.  This will be appealed to the full 9th Circuit and possibly to the US Supreme Court.  

Champaign v Provena

A judge has decided that Provena must pay the $6 million owed since the loss of their non profit status while their appeal to the Illinois Supreme Court is pending. 

US v Urciuoli

The federal jury acquitted Frances Driscoll and convicted her boss Robert Urciuoli of corruption.  They were the head of Roger Williams Hospital and were accused of hiring state senator John Celona to give favors to the hospital.  

Hall v Medicare

 Mr. Hall and two others are challenging the rule that forces all people taking Social Security to take Medicare Part A.  These people have the wherewithal to pay for their own healthcare and do not want Medicare.  They actually want to save the taxpayors money.  The rules propagated in 1993 and 2002 that mandate the combination never went through the proper channels which is a violation of the Administrative Procedures Act.   

Franklin Hosp v Harvey
D Maine

Franklin Hospital is a non profit hospital in Maine.  Maine has a law that states that hospitals are required to furnish free healthcare services to certain people with low incomes.  Franklin is challenging that law.  Franklin stated that this was a taking without payment.  Franklin lost since the cost lost to the hospital was not high enough to be a taking.         Top


Pollack v Sisters of St. Francis
Ind. Ct. App

Pollack had some issues of stress which did not allow him to do surgery.  He applied for and received from the hospital a one year leave of absence.  The physician never returned after the year and never did the necessary things required under the medical staff bylaws to be reinstated.  Under the bylaws this became an automatic voluntary resignation.  The physician attempted to sue the hospital six years later but of course lost the summary judgment since he never complied with his own bylaws.  

Guzman v Sherry
9th Circ

Guzman, a physician, was automatically suspended from the California Medicaid program when he was accused of Medicaid fraud.  He sued for an injunction and the court and the Circuit both turned him down since there is no federal right to a hearing prior to a temporary suspension from the program.   

Fox v Piche

In this long running dispute in both state and federal courts, Fox, a pediatric critical care physician, sued multiple people in the HCA Good Samaritan Hospital in San Jose, California, for antitrust violations.  This case was for summary judgment.  The case was that the hospital changed their rules making Dr. Fox ineligible to care for the babies and having his privileges not given.  The hospital then gave an exclusive contract to another group which made the sick babies transfer to the now defunct San Jose Hospital.  Dr. Fox won most of the items in his suit and some that he lost he can amend to again allow that part to go forward.  This is a major blow to the hospital and great lawyering by the physician's counsel.   

American Coalition v Planned Parenthood
US Supreme Court

The high court again decided not to hear the $16 million dollar judgment against the Pro Life Coalition by Planned Parenthood.  The case was when the Coalition put up wanted posters with physicians names, addresses and phone numbers.  This is against a 1994 Federal law that makes it illegal to incite violence against abortion doctors.          Top

Peer Review

Saguaro v Banner Health
Summary Judgment Motion

Saguaro Medical and Dr. Malhotra sued Banner Health for breach of contract and interference with business.  Banner asked for a Motion to Dismiss.  The USDC of Arizona denied the motion since the physician stated a contract, the bylaws are a contract in Arizona, and a plausible pleading that he was racially targeted.  The hospital can with discovery (this costs money) prove him wrong in his being removed a Department Chair and from the MEC was racially motivated.        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.