October 15, 2014 Recent Legal News


Peer Review and Employment





Patients v Endo

Endo International has agreed to pay $400 million to cover the class action law suit against it regarding the vaginal mesh implants eroding in some women.  This resolves almost 10,000 suits for about $48,000 each.  They had earlier agreed to pay $800 million to settle another 20,000 suits.  In a settlement a year ago they paid $53 million to resolve an undisclosed number of suits.

Cramblett v Midwest Sperm Bank

A lesbian couple wanted children and reviewed multiple sperm donors on line.  They picked Caucasian donor 380 but was given a Black donor.  Two years after the child was born they have sued for greater than $50,000 for breach of warranty and wrongful birth.  They may win the former but will probably lose the later.  

Roe v Children's Hospital 
Massachusetts Supreme Court

In an interesting case the state high court said the hospital had no duty to future patients of an employed physician who left the hospital.  Twenty four years after the physician left the employ he was accused of sexual physical exams and lost his license.  They are suing the hospital because they believe they knew or should have known he had problems and failed to report the physician.  The court said no duty to future unknown patients but they had a duty at the time to protect patients.  The court did not comment on any duty to future employers if they would have asked since the question was not pertinent to this case.        Top

Peer Review and Employment

Coats v Dish
Colorado Supreme Court

It will be interesting to see to the state high court resolves this as medical marijuana is legal in the state.  Mr. Coats, a quadriplegic and licensed marijuana user, was fired by Dish after testing positive on a routine test.  The trial court ruled that even though it is illegal to fire someone for engaging in an legal activity off the premises of the employer during nonworking hours his firing was legal since the activity was illegal under federal law.  The new Colorado law legalizing the non medical use of marijuana states that it does not require employers to accommodate the medical use of marijuana in any workplace.  

Frost Street Medical v San Diego Internal Medicine Group
Ca Ct App

Sour grapes.  Frost Street and SDIM both did hospitalist duties at the hospital.  The hospital picked SDIM for an exclusive contract and Frost sued and lost.  The hospital's decision is quasi-legislative and is given great deference.  Courts will not second guess rational business decisions.

Bulwer v Mt. Auburn Hospital
Miss. App. ct.

A physician, who had practiced for 16 years in Belize, was accepted into a residency.  After his initial good recommendation he received three bad recommendations.  His next rotation explained his past bad one was due to his zeal.  He was told he would not be hired for the second year but would be allowed to finish his first year.  He appealed and after the hearing he was immediately let go.  He sued for discrimination and the lower court dismissed his claim.  The court of appeals reversed and let the case go forward since the hospital did not follow its policies and there was some evidence of bias.  Therefore, there were facts in dispute.

Sutcliffe v Mercy Clinics
Iowa Ct App

Sutcliffe worked for the clinic under a written contract.  The clinic also orally promised him more money for different services.  He provided the services but was not paid.  He sued for breach of contract and the hospital wanted binding arbitration.  The lower court said there was no interstate nexus so the FAA was not in play.  The court of appeal reversed stating the clinic treated Medicare patients and this was enough interstate action to compel arbitration.

Anyone see a pattern in the following cases

Torchia v Community Health Care

The former medical director filed a breach of contract suit against the institution due to  discrimination.  She says the CEO harassed her and talked about her age, gender, national origin and religion.  The court said she presented no facts to support her claim as the person that was hired to replace her was also over 40 years old.  The huge majority of workers at the institution were female and the community was Italian.  She lost.

Digiosia v Aurora Health Care
ED Wisc

The female OB sued after she was placed on leave and then terminated from the facility.  She claimed discrimination against the ADA.  She stated that she has a bipolar disorder and that is why she was terminated.  In reality she had two infant deaths within one month that put her on leave and while she was gone her colleagues petitioned not to have her back.  She was unable to show the discrimination if present was the cause for the termination and she lost at summary judgment. 

Carson v University of Chicago Med Ctr

 A black director of the infusion therapy unit was fired after multiple bad performance reviews and then failed a focused inspection of the unit.  She sued since she says she was treated differently than others similarly situated after a focused inspection.  The court stated that not only did she not provide enough evidence of discrimination but the hospital had a legitimate reason to fire her- she did not perform her job satisfactorily.  

Alexander v Avera St. Luke's Hospital
8th Circuit

The pathologist had his contract cancelled and the position filled by two others.  He sued for multiple federal and state claims of discrimination.  The case boiled down to a simple premise he was not ever an employee of the hospital.  All his contracts stated he was an independent contactor.  His bipolar and cardiac disorders may or may not have been important but since he was not an employee he could not sue under the laws.

Nahas v Shore Medical Center

The surgeon was found guilty of Medicare fraud and lost his license for sis months.  His hospital privileges were taken away for three years.  After three years he was reinstated but he stated the hospital was hostile toward him because he was middle-eastern.  He had sued the hospital to get his vascular privileges and won.  He had problems then getting his endovascular privileges.  During his time back on the staff he had multiple disciplinary procedures filed against him.  He then sued the hospital again but this time for antitrust, civil rights violations and unfair competition.  The court dismissed all claims against the hospital.  No facts to support the claims.        Top 


US v Mesiwala

Dr. Kutub Mesiwala of Bloomfield Hills, Michigan, and three others were indicted for health fraud conspiracy.  This brings to 15 so indicted to date including the conviction of seven.  The physician has been accused of accepting kickbacks for referring Medicare patients for home health and falsely certifying that they required care. 

Fougner v Empire Blue Cross/Shield

The recent law school grad filed the suit for fraud in advertising.  He states that the company is either grossly incompetent or lying outright when they give names for physicians.  He got the names and contacts information for 30 physicians for his new plan.  He found none that took the plan or were where the plan said they were.  He called the plan and guess what they sent him the same list as on their faulty website with the same wrong information.  He wants to suspend his payments until he is able to find a physician.         Top


Patients v Flowers Hospital
D Ala

A federal judge has refused to terminate a class action suit against the hospital for not having security measures in place when an employee was found to be stealing patient information to file false tax returns.  The hospital wanted the case dropped stating the plaintiffs did not allege the facts that demonstrate the hospital was at fault.        Top  


Doctors Hospital of Augusta v Louisiana Medicaid
La Ct App

The hospital with a great burn unit was contacted by a Louisiana hospital to take their burn patient who had a 40% burn.  They took the patient who was an inpatient for 3 months.  They billed the Louisiana Medicaid and were denied since Louisiana had hospitals that might have treated the patient and that since it was a three hour it was not an emergency.  Not so under EMTALA.  The court of appeal ruled that the transfer was okay under the fed law and the patient would need to be transferred in any case.  Pay the bill and the attorney fees of your own attorneys.

Center for Reproductive Rights v Texas
5th Circuit

The 5th Circuit overturned a District court judge and allowed Texas' House Bill 2 to remain in effect.  The judge had allowed abortion clinics to remain open during the appeal.  This ruling immediately closed most of the abortion clinic in the state.  The bill said that no abortions after 20 weeks, abortion drugs be administered in the presence of a physician, physicians performing abortions must have hospital privileges within twenty miles and the clinics must all have the same equipment and building requirements as ambulatory surgery centers.  

Armstrong v Exceptional Child Center
US Supreme Court

The court has agreed to hear an appeal from the 9th Circuit.  The case is about whether a physician has the right to sue a state for low funding.  The state officials recommended increased funding but the legislature did not allot any funds.  The 9th ruled they could.  Bet it's overruled.

In re McMath

The case that never dies but should it.  The 13 year old was declared brain dead by the physicians and the court but the mother refused to have the life support terminated.  The child was taken to New Jersey where she remains on support.  The mother now wants her almost a year later declared not brain dead and is going to court to force the issue.  Why, if she is alive she is eligible for state funds and can be taken back to California.  They show movements with a command on a tape but that can be twitches.  They show a MRI that purports to show no liquefaction.  No direct evidence.        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.