September 1, 2003 Recent Legal News

Peer Review


Elder Abuse

Doctors v Insurance Co.

Medicaid Defined


Medical Marijuana


Peer Review

Ardisana v Northwest Hosp
Ill App. Ct.

The hospital appealed an order to produce peer review documents.  The court stated that the results of peer review are not privileged but the workings are.

Hassan v Mercy Am. River Hosp.
CA Supreme Ct.

Hassan sued Mercy for a wrongful communication to another hospital at which he was attempting to get privileges.  The lower court gave summary judgment to the hospital and Hassan appealed.  The Supreme Court stated that under California statute Civil Code 43.8 there is immunity to anyone who tells a hospital about a practitioner.  The anyone includes both natural and unnatural persons (Corporations).  The court went on to state that the immunity conferred is qualified and not absolute.  It can be defeated by the showing of of the knowledge that the communication was false or they did not really want to aid the evaluation of the person.  In this case there were no triable issues of malice and Hassan loses.    

Meyers v Columbia/HCA
6th Circ.

Meyers was appointed to the hospital for one year provisional status.  He was suspended after that and given due process rights prior to termination from the staff for a combination of disruptive acts and quality of care reasons. Meyers filed two motions in state court and then a third in Federal court.  The District court ruled for the hospital on summary judgment but denied fees.  Both sides appealed.  The 6th Circuit stated that the hospital enjoys a rebuttable immunity.  Meyers failed in his burden to challenge the immunity and the Board's action were taken to further quality care and were not unreasonable in their belief.  The 6th also allowed to stand the lack of payment of attorney's fees as the case was not frivolous, unreasonable, without foundation or in bad faith.  

Klockers v Anderson
KY Ct. App.

A physician sued a hospital for peer review matters but did not finish the peer review process.  The trial court stated that they lacked jurisdiction since all hospital appeals had not been done.  This was appealed.  The appeals court stated since the trial court lacked jurisdiction, anything they said was only dicta and held no weight.         Top


Lee v Kennedy Med Ctr, Etc.
CA Ct. App

Lee was admitted to Kennedy involuntarily for psychiatric evaluation.  The law allows a 72 hour hold for the evaluation to take place.  Lee's mother told the physicians that Lee was schizophrenic and asking for a gun.  He was restrained for his and others safety.  Two days later he was certified for an additional 14 days, again under the power of state law.  He was placed on medication.  The following day he was released, stopped his meds and killed a 66 year old woman while attempting to steal her car.  He confessed and died in jail by hanging himself with a bed sheet.  The woman attempted to sue  but under Tarasoff the hospital was deemed not liable in the lower court  since the victim wasn't foreseeable. The court reversed this notion stating that if someone is hospitalized under the law and the physicians do not follow the law they can be held liable for any injury to the patient and all people injured by that patient.  Lee's mother sued for ignoring the warning that he was suicidal.  The possible reason Lee was released was he could not pay for the 14 day therapy.  The private facility should have contacted a county facility and arranged for a transfer.  The court stated it was up to the jury to decide the reasons for the early release.  The sons of the victim settled with the mall in which the crime took place for $500,000 and $1 million against the estate of Lee.  If anyone wins any money against the hospital and physicians the money will go to the survivors of the victim.  

Gonzalez v Paradise Valley Hosp
CA Ct. App.

In another psych case, the court stated the hospital may be liable for the death of a detainee who escaped during an involuntary hold.  This case takes away the immunity thought to exist under Welfare and Institution Code 5278.  

Multiple Plaintiffs v Tenet

Three hundred sixty six former patients at Tenet in Redding California sued the hospital, the Cardiologist Moon, and the Heart Surgeon Realyvasquez for fraud, negligence, elder abuse and battery.  The latter two can carry punitive damages since they are intentional torts.  The complaint is 247 pages in length.  The hospital has a problem since they were apparently warned by other physicians about the unnecessary surgery and did nothing.  

Person v Cruise Line
Fla. Appeals Ct.

The Florida Appeals Court has stated that the cruise lines are responsible for the physicians they hire. The physician is an agent of the cruise line, no matter what the contract states.  Until this ruling the passenger would need to sue the physician in the physician's home country.  This follows a ruling that the ship may not use its foreign registry to shield itself from liability. 

Sarver v Hockenberry, MD
Nev. Supreme Ct.

Sarver had abdominal pain that was apparently not worked up by her physician in a timely matter.  This led to the delayed treatment of a small bowel obstruction and the loss of almost all of the small bowel.  After filing suit she and the physician both agreed to settle the suit for the policy limit of $1million.  The insurer, Doctor's Company refused and the case went to trial where she won a verdict of $8.3 million.  This has increased to $11 million due to interest while the case has been appealed.  Since the physician agreed to settle and the insurance company didn't, the entire amount is on the Company's dime.     Top

Elder Abuse

Marron v Superior Ct.
CA Supreme Ct.

This case could bode poorly for all California and other state malpractice claims.  The underlying claim is one of straight negligence.  The case also expanded the definition of elder abuse to any person between the ages of 18-64 who is an inpatient in a hospital.  This would expand the ability of trial attorneys to get around MICRA by suing under the Elder abuse statutes.  There was no appeal of the LA Ct. of Appeal decision to the Supreme Ct. but the Supreme Ct. refused to decertify it, so it stands as precedent in that area.  The case also decreases the standard of care requirement for proof of "reckless neglect".          Top

Doctors v Insurance Companies

Doctors v Independence Blue Cross

There is a class action suit in Pennsylvania by the physicians against Independence Blue Cross.  There had been a tentative settlement reached in that case where the company had agreed to stop downcoding and bundling as well as disclosing how the pay policies work.  This would also raise payments over $40 million over two years.  The primary care practitioners have dropped out of the settlement.  This is about 1/3 of the total claimants.  There would be no payment for the years of physician mistreatment.        Top

Medicaid Defined

Scottsdale Health v Medicaid
Ariz. Supreme Ct.

The Arizona Supreme Court has overturned an appeals court decision.  The high court stated that Medicaid eligibility is to be broadly interpreted.  The Arizona Medicaid program stopped paying when an undocumented alien was transferred from an acute care to a sub-acute hospital.  The Supreme Court said this is too arbitrary a cutoff. The cutoff should be the patient's current condition and whether or not the condition is covered under the Medicaid laws.        Top


Harmon v Texas
Tex. App. Ct.

A grand jury requested via subpoena the blood alcohol test.  The alleged drunk driver protested and appealed when he lost.  This unpublished decision allowed the blood alcohol level of 0.18 to be introduced to the grand jury. HIPAA allows information to be given pursuant to a grand jury subpoena and for law enforcement purposes.        Top

Medical Marijuana

Emry v US
DC Ct. App.

Emry has multiple sclerosis and uses marijuana to help control the symptoms.  She is also an activist and went to a Congressman's office to light up a joint.  The jury convicted her since she was not having any symptoms when she toked in the office and therefore had no viable medical necessity defense.  This was affirmed by the DC Ct. of Appeal.

People v Kelly
Butte County, CA

The only case in this county, noted for it's growth of marijuana, that actually convicted someone on a marijuana related offense was tossed.  Kelly had been tried and acquitted on felony growth and sales of the weed but convicted on a misdemeanor charge of drug possession.  The judge has now thrown out the conviction stating the jury made the decision without enough evidence to convict.   Top


Johnson v Nacogdoches City Hosp.
Tex. App. Ct.

Johnson sued the hospital because a deceased patient had a twelve minute delay in the medical screening exam.  It is amazing that anyone took the case and even more amazing that someone would appeal it.  This speaks volumes regarding Texas attorneys and their hope for settlements.        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.