October 15, 2001

Sulzer Has a Problem
Woman Sues Britain for Right to Die
Two Sue Vaccine Makers for Autism
Peer Review?
Physician License Suspended

Sulzer has a Problem

Sulzer, the maker of hip and knee replacement devices, had hoped for a class settlement.  The judge had agreed but it may be too little too late. Several days after the judge in Ohio had allowed the potential for a class action, a jury in Texas awarded $15 million including punitive damages to three women who had hip replacements with the faulty devices.  This could get others to opt into a class settlement.  The jury also believed that Sulzer acted with malice since they did not inform physicians and patients earlier.  Sulzer stated that this verdict is the reason that people should opt in for the class settlement.  Sulzer will go bankrupt soon with these verdicts and there will be no money left to pay others.  The class action placed a lien on Sulzer's assets and means the three women may wait many years to see any money, if ever.        Top

Woman Sues Britain for Right to Die

A terminally ill British woman has sued to forbid the authorities from prosecuting her husband to help her husband die.  She is suing for euthanasia. A judge has allowed the suit to continue.  The director of public prosecutions would not guarantee that the husband would not be prosecuted if he helped his wife commit suicide.  Britain has a 1961 law prohibiting aiding suicide. Top

Two Sue Vaccine Makers for Autism

Two families have attempted to have a law suit certified in Massachusetts  as a class action.  They contend that vaccines contain mercury and that leads to autism.  This is one of many to be filed by a firm in Oregon in multiple states.  The plaintiffs have an uphill battle with the FDA coming out against them.  They state that the amount of mercury used as a preservative in the vaccines were not harmful to people. There are currently studies underway to determine if there is any relationship between mercury and autism. The suit alleges there is too much mercury in the vaccine but there is no standard for ethyl mercury, the type in the vaccine. Top

Peer Review

Geiger v Zelenkofske
Pa. Ct. of Common Pleas

The patient suffered multiple injuries post cardiac surgery sued all involved including the hospital for corporate liability.  The patient as part of discovery requested the physicians' applications, credential files and the physicians' complication rate for the surgery performed.  The court held that the patients may discover the applications and credential files when they sue on a corporate liability charge that the hospital was negligent in credentialing.  The court also allowed the patient to see the physicians' complication rate since any documents prepared in the normal course of business is discoverable.  This is bad law and needs to be appealed.      

Lipson v Anesthesia Services
Del Super. Ct.

 Lipson sued his former medical practice for slander, improper discharge.  The local hospital that contracted with the anesthesia group requested the peer review.  The medical group stated they were doing a valid peer review and were protected.  The court found the group had inadequate process and therefore could not be protected peer review.  Since it was not protected it could be sued for the above charges.  Also, the qualified privilege for statements about the individual may have been motivated by malice and are ripe for trial.  This shows what will happen when an exclusive medical group does the bidding of its master and does it wrong.  The medical group hopefully had legal counsel for the process and that person knew peer review law.  If so they might be able to get some money back from the attorney's insurer. 

Chadha v Charlotte Hungerford Hosp.
Conn. Superior Ct.

A physician had his clinical privileges revoked and the lost his license.  Most counts had been dismissed earlier.  This was on immunity for the professional peer review body under HCQIA.  The court backed the physician since he alleged malice which negated HCQIA.  The physician had not proven the malice allegations but the hospital did not raise any evidence to counter the allegations so there remained fact issues to be resolved and a trial was in order.  This is a case of terrible lawyering or there was malice  present either of which will cost the hospital money.      

Mattice v Memorial Hospital of South Bend
ND Ind.

An anesthesiologist sued the hospital under the ADA.  He was treated for major depression and a panic attack.  He was summarily suspended and peer reviewed after a patient died during an operation.  The peer review committee recommended returning the anesthesiologist to work but this was overturned by the MEC.  The Board overturned the MEC and allowed the physician to return to work but with a monitoring and testing regime.  The physician said this made it impossible to return to work. The physician requested the peer review records.  The court weighed the peer review protections and the need for the records and ruled for the physician.  This is consistent with other courts that have ruled that probative evidence in discrimination overrules the peer review privilege.    Top


Reyes v Meadowlands 
NJ Super Ct.

A patient died unexpectantly and the family sued the hospital and physicians.  As part of discovery the plaintiff requested the information obtained during the hospital investigation.  The hospital claimed privilege since it was done for self critical analysis in accordance with the Sentinel Event Policy as outlined by JCAHO.  There was an affidavit from JCAHO but the court wasn't impressed.  The court said privileges because they tend to stifle the truth are to be disfavored.  It making this analysis the court went against several other New Jersey courts. This will probably be appealed.

Hofflander v St. Catherine's Hosp.
Wis. Ct. App.

 A psychiatric patient sued the hospital for negligence when he was injured after going to a neighbor's room, taking out the wall air conditioner and jumping.  The patient also requested the JCAHO records of the sentinel event.  The lower court and the court of appeals both denied the patient access to the JCAHO records since it performs a function like a peer review committee and public policy is that it should be privileged.  This is the first case that I know of that the JCAHO sentinel event review was deemed privileged as a peer review document.     Top

Physician License Suspended

A Vancouver, Washington family practitioner has had his license suspended by the state for taking digital pictures without permission in the performance of vaginal exams.  He is also charged with doing exams without sterile gloves.  The physician was turned in to the state by his office nurse, who continued to work there until the office was closed.  The police found the pictures on the physician's computer and the physician never denied taking the pictures.  He stated he did it for clinical reasons.  As far as the sterile glove issue, I know of no law that requires the use of sterile gloves while performing vaginal exams.  Almost all people use non-sterile gloves. I assume the pictures showed that he was wearing no gloves.  That may or not be immoral or illegal but it is certainly stupid since he may have caught a disease.  Top


Mares v Baughman
Ca Ct. App.

Mares was involved in an automobile  accident.  He was in a coma for three weeks prior to death.  A law suit was filed against the driver of the other car and a settlement reached.  The County hospital who cared for the patient filed a lien for $218,742.24 as the reasonable amount expended on the care of the patient.  The family who had reached the settlement fought the lien on the basis that a lien can only be on a judgment, not a settlement.  The statute plainly states that the hospital may lien but only against a judgment.  The court went with the clear meaning of the statute.  This should lead to many settlements by plaintiffs.         Top

Lien Surgery

While reading one of my legal newspapers I came across an ad for lien surgery.  The company states they have assembled a national group of physicians that will operate or perform radiological procedures, provide medications or medical devices on accident patients for no upfront money.  They will be paid by a lien against any award the patient may get from the other party.  At first this makes no sense as they will need to wait for their money but there is no reduction in fees for any insurances, as they will not be billed.  Top

CMA Sues to Stop CA From Releasing Info

The California Medical Association (CMA) has filed suit to stop the release of the information obtained by the California Department of Managed Care.  The Dept. has obtained the financial data on the state's IPAs and wants to release the information to the public.  The IPAs do not want the data released since they fear the HMOs will use the data to leverage negotiations.  As I previously reported, that argument doesn't hold since the HMOs already know the financial health or unhealth of its representative IPAs.  The Department wants to release whether the IPA processes the claim from their providers in a timely manner, whether they know of claims that have been incurred but not reported, whether they maintain a positive working capital and if a group has a tangible positive net equity.  The maker of the bill stated it was not her intention that this information become public.  Her bill is silent on the matter.     The State did release under four general categories the fiscal health of IPAs.  Only 44% of the state's IPAs passed all four criteria.     

Kaiser v Cigna

Kaiser has sued Cigna on a simple breach of contract to keep the case in state and not federal court.  The case has now been certified as a class action suit.  The basis for the suit is the PPO contract does not state anything about dropped codes, downcoding and bundling.  Cigna attempted to oppose the action in federal court in Chicago instead of state court in Madison County, Illinois.  They asked the court to enforce an arbitration agreement. The suit was rejected within three days. The AMA is helping by providing expert opinion on the billing issues.  

Rogers v Cigna
Texas Superior Court

Twenty nine physicians have sued Cigna of Texas for breach of contract for not disclosing fee schedules.  These idiot doctors signed the contracts anyway and are now unhappy because they are not being paid enough.  The physicians want a class action to break the contract and be paid the UC rate.  Cigna is being sued around the country for the same thing.  Illinois physicians filed suit earlier this year and Cigna is one of the named defendants in the Florida class action suit.  The physicians may win this since there should be a notice of payment for services.  

Blue Cross, the largest insurer in Florida, has been sued by for unfairly terminating physician contracts causing problems in the patient physician relationship.  This also has led to a state investigation into the ability of physicians to be patient advocates and problems with the Florida Medical Association.  Blue Cross says the culling is part of its routine effort to lower costs. In the latest suit a medical group in Lake City were not only terminated but had letters sent to their patients implying improper care.    Top

ERISA Confusion

Corsini v United Helathcare
145 Fed Supp 2nd

A district court held that a HMO was unlawful by calculating co-pays under Medicare+Choice using the full fee rather than the discounted fee.  This was because the court rules against the drafter of ambiguous terms.  The court ruled United owed the class action plaintiffs the difference plus interest.

Lefler v United Healthcare
Dist. Ct. Utah

Under the same facts a different court agreed with United and dismissed the claim under summary judgment.  They felt the contract may be reasonably interpreted the other way.  This means an appeal on both cases.     

In another ERISA case the US Supreme Court has refused to hear and allowed to stand a ruling by the California Supreme Court that allows Medicare patients to sue their HMO in state court for being unfairly denied treatment.  This case McCall v PacifiCare was where the HMO refused to refer him to a specialist for 12 years and when they did he needed a lung transplant, which they refused.   Top


O'Neal v Garrison
11th Circ

The Vice-President of a health plan testified before the grand jury about Medicare fraud against health plan's president and controlling shareholder.  The next day he was placed on administrative leave and escorted off the premises.  He was told he would be reinstated if he would change his testimony.  He refused and the new president sent him a letter terminating his employment.  The trial court gave summary judgment to the employer for conspiracy, obstructing justice and intimidating a witness.  The 11th Circ. rectified that by reversing the trial court stating a recent supreme court case stated that retaliation applied to protect employees against intimidation rather than deprivation of property.  This reversed prior law in the Circuit that stated an "at will" employee was not protected since he had no property rights. The court also reversed a claim against the new president alleging tortuous interference with contract to go forward.  As an "at will" employee he had no claim against the employer health plan but did against a third person tortfeaser, the new president.                 

Gedon v Bry-Lin Hospital
NY Appellate

The family of an anesthesia resident sued for wrongful death after the resident died of an overdose of anesthetic narcotics.  The resident was acting strangely, missed a surgery and found with drug paraphernalia.  He was reported to the impaired physician program and examined.  No mental illness was found by the psychiatrist.  The resident died several months later of an overdose.  The lower court ruled for the hospital on summary judgment.  The Appeals overruled saying there was no duty of a patient physician relationship here but there may be other duties owed to the resident.  

Lewis v Physicians Ins. Co.
Wisc. Supreme Ct.

Seldera, MD performed a cholycystectomy on Lewis.  Postoperatively a reoperation was necessary and a sponge was found from the first surgery.  The original count was reported as correct.  The hospital admitted nurse liability but since it is a county hospital the negligence is limited by statute to $50,000.  Lewis then sued Seldera stating he was captain of the ship and vicariously liable. The trial court ruled for Seldera. The appeals and then the Supreme Court affirmed.  The captain of the ship doctrine has never been available in Wisconsin and the Court was not going to adopt it.

Northeast Health Management v Cotton
Ky. App.

After resignation, two employees sued the hospital of wrongful discharge and emotional distress.  The employees claimed the workplace intolerable after they refused to lie for the hospital administrator when she was charged with shoplifting.  Later they refused to submit a fraudulent document regarding the hospital's transfer policy.  The jury and the appeals court found in favor of the employees and give them lost wages and punitive damages.

Padney v MetroHealth Med. Ctr.
Ohio Ct. App

The Court of Appeals overrode the trial court in a case of a death secondary to a hospital employee getting TB during an autopsy.  The trial court granted judgment for the defendant.  The Appeals Court stated that there was enough disputed facts that the case should go to the jury.  There is no dispute regarding the employee obtaining the disease in his performance as an denier.  The question was whether or not the hospital's autopsy room complied with a state law requiring a total of 12 air exchanges per hour.    Top


Ravinikar v Bogojavlensky
Mass. Dist. Ct.

Plaintiff, a female reproductive specialist, sued another OB/GYN for defamation.  The plaintiff states that a patient scheduled to see her was told by the defendant not to see her since she was dying of breast cancer.  The defendant admitted he had reason to believe this was true.  The patient did see the plaintiff and told the plaintiff about the remarks.  She demanded an apology and none was given so she sued.  The trial and appellate court both granted summary judgment to the defendant since the claims did not rise to level of being actionable.  Since the comments about the patient's disease were not about a loathsome disease so therefore did not sully her reputation.       Top


Miller v Martig
Ind. Ct. Appeal

There was not duty to a patient in labor when the anesthesiologist on call refused to do an epidural.  The refusal was due to the anesthesiologist not having the proper training for the procedure.  The anesthesiologist after conferring with the patient went to sleep in the anesthesiologist on-call room.  There was a problem requiring an immediate C-section and the anesthesiologist could not be found even though he was sleeping in the proper place and had told the nurses where he would be and that his beeper was not working.  The patient had to undergo a C-section without anesthesia.  The trial court and the appeals court both ruled their was no relationship between the parties and therefore no duty was old.  Without duty there can be no negligence.  The court ruled that the anesthesiologist had told the patient he would not take her case.

Rodriquez v San Beradino Community Hosp, T. Muntaseb, MD 
San Beradino Superior Ct.

In a case that is likely to have interesting consequences a patient sued the hospital and the physician for medical malpractice arising out of a bad baby case with severe brain damage.  The verdict was for $7.6 million plus $2.8 million prejudgment interest against the physician.  Prior to the trial the plaintiff demanded the policy limit of $1 million and the physician consented to the offer.  The insurance company refused to pay and offered $150,000.  I believe the insurance company is on the hook to pay all the money since they refused the offer.  The physician should only be liable for the insurance limits and of course that will be paid by the insurance company.  I feel an appeal and another suit between the carrier and the insured coming on.  Sometimes it pays to get your own attorney even if it costs you money out of pocket.  The other interesting aspect is where the law firm that defended the physician is in the conflict.  They are supposed to represent the physician and not the insurance company.   

Continental v MedAire

Continental Airlines has sued MedAire, a on call in-flight advisory for medical emergencies. A passenger's wife sued the airline for wrongful death of her husband when the pilot on advise from MedAire decided not to divert the plain to the closest major airport.  Continental has sued MedAire in case it loses its underlying suit.  The passenger suffered a stroke flying from Houston to Newark and the plane did not divert to New Orleans.  The patient died on a train from Newark back home from complications of the stroke.  

A North Carolina Court of Appeals has stated that plaintiffs do not need expert to review the case prior to filing a suit for medical malpractice.  The court stated that this requirement is different from all other plaintiff suits and therefore discriminatory.  The dissent stated that filing a medical malpractice case is not a fundamental right and reasonable qualifications are within the rights.  This requirement was brought in with Republican tort reform and has been fought by the Democratic Trial Attorneys. This will now be appealed to the Supreme Court of North Carolina.

A Florida Appeals Court has tossed a $79.6 million verdict against Humana for malpractice due to a judges prejudicial remarks.  The case of Caitlyn v Humana will go back to trial.  

Blackburn v Columbia Med Ctr.
Tex. App.

Blackburn sued the hospital stating the independent contractor radiologist did not diagnose her spine fracture. She claimed the hospital was liable under a joint enterprise theory. The hospital was granted summary judgment.  One of the elements for joint enterprise is a community of pecuniary interest between the hospital and the radiology group.  There was none, the radiology group is an independent contractor and the judgment was upheld.

Stover v Garfield
Mich Ct. App.

A physician in a nursing home terminated artificial feeding of a patient at the instruction of the patient's wife.  Later the living will showed the patient wanted artificial feeding and the estate sued.  The living will was at the family physician's office.  The nursing home did not expend any energy looking for it. The case was brought as a non-malpractice suit and the carrier withdrew.  The trial court refused to allow the withdrawal since the policy provided for claims other than malpractice.  The Appeals overruled and stated the policy was only for malpractice and therefore did not apply here.

Irvin v Smith
Kan. Supreme Ct.

A child with a ventriculperitoneal shunt sued her pediatric intensivist and a pediatric neurologist for failing to diagnose a malfunction of the shunt. The consultant neurologist was dropped by the court due to a lack of a patient physician relationship.  The only involvement was an informal opinion to the physician during a phone conversation.  The mere act of agreeing to see the patient at later time does not begin the relationship.   Top

Informed Consent

Schiff v Prados
CA Ct. App.

A physician has an obligation to inform a patient about the available choices available.  There is no need nor duty to tell about those choices which are not legal nor available. In this case the patient, a child, had a brain tumor and was referred to UCSF.  She had surgery and was then given chemotherapy and radiation.  Later, after failing the regime,  the parents  found out about a clinic in Texas that was using a non-FDA approved drug but with excellent results.  They went to Texas and received the drug which completely removed all the tumor.  She eventually died from complications of the radiation therapy.  The parents then sued for lack of informed consent because they were not told of the Texas antineoplastons.  The court stated that since the antineoplastons were not legal in California the physician had no duty to disclose.                         Top

Fraud and Abuse

US vs Rao

Three physicians, an Edgewater Hospital manager in Chicago have been found guilty of fraud for sending patients to the hospital for procedures that were not necessary.  The hospital and holding company were paying the physicians for the referrals. The patients were offered food and other incentives to be hospitalized and have procedures performed.  The hospital is under investigation and the holding company is scheduled for trial soon.  Another physician has been charged with fraud.  The guilty physicians are Drs. Vavilikolanu, Kaliana and Barnabus.  The manager is Roger Ehman and the charged holding company and physician are Bainbridge Management and Dr. Cubria.  Two of the phony patients treated by Cubria died and his license has been suspended.

TAP Pharmaceuticals, the maker of Lupron, has agreed to a fine of $875 million and a seven year CIA.  This is the largest fine ever imposed on a company.  The company had anticipated the fine and had set aside enough reserves to pay it.  This is a whistleblower case and the three whistleblowers will share $95 million of the settlement.  One gets $77 million and the other two split the remainder. Four urologists were also found guilty and await sentencing. A fifth one has just been indicted. 

Another whistleblower in a case against Quorum Health will get $20.5 million.  Quorum agreed to the settlement regarding inflating cost reports to maximize Medicare payments.  

US v Lisa
11th Circ.

Two Florida physicians convicted of illegal kickbacks from a lab appealed.  The physicians had been hired as consultants and were to make legitimate referrals to the lab.  The 11th not only affirmed the conviction but also the enhancements since they have a fiduciary duty and accepted illegal kickbacks even though the referrals were legal.   

US v Marsh

Marsh, a physician known for helping the poor, may now help himself.  He has been found guilty of sending patients for un-needed laboratory tests and receiving a kickback disguised as lease payments on those tests.  His medical license was revoked and he was fined $5,000 and placed on home detention for six months and three years probation.  In state court he was convicted of forging prescriptions and ordered to pay $45,000.     Top 

Murder, She Wrote

A woman has been charged with attempted murder in Rancho Cucamonga, California.  The woman, Maria Trujillo, allegedly disabled an alarm on a ventilator of a terminal cancer patient and then turned off the ventilator.  The patient is a relative of the accused and the last one seen with the patient.  The nurses found the patient gasping for air and turned the vent back on.  The patient died the next day.                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.