September 1, 2004 Recent Legal News
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Poliner v Presbyterian Hospital
Dallas, Texas Jury Decision
Dr. Poliner, a cardiologist, was told to stop doing heart catheterizations or face termination of his privileges. The hospital and the competing cardiologists who accused Dr. Poliner of inadequate care refused to get outside opinions of the care provided, a serious error. The hospital finally got the outside consultations after the fact and it shown by multiple national experts that Dr. Poliner was practicing good medicine. The hospital then restored the privileges but also upheld the earlier suspension of the privileges. Dr. Poliner sued the hospital and the Chiefs of Medicine, Cardiology and Cardiac Catheterizations. The jury awarded Dr. Poliner $366 million in damages for breach of contract, defamation, interference with contractual relations and intentional inflection of emotional distress. The jury split the award by $161 million from the hospital, $141 million from the Chief of Medicine, $32 million from both of the other two. The case will be appealed and Dr. Poliner will not receive anything even close to the amount awarded, if anything. I am sure that all four defendants are sweating since this is usually not covered by insurance. Top
Nevada v San Luis Med Cr.
To be Filed
Los Vegas attorneys went to Alamoso, Colorado, to interview hospital officials about the death of a child and the murder charge against her mother. The risk manager instructed all the employees not to speak to the attorneys. As the Nevada attorneys have no power in Colorado, they cannot have the risk manager arrested for obstruction. Instead they are going to court to get an order to force all the necessary hospital employees to speak with them. They have a dead patient, a mother in custody and a consent signed by the father.
People v Martel, MD
Minn. Trial Ct.
A physician at Hennepin County Med Center followed his hospital's erroneous policy and refused to draw blood from a suspected person thought to drinking when he stabbed another. The police went as far as calling a judge to call the physician ordering him to draw blood. The doctor still refused. The hospital required a signed court order to draw blood on someone who refused to consent. The written order arrived five hours after the police brought the suspect to the hospital and after Dr. Martel had already been arrested. The hospital is now working to change their policy so that there can be no questions.
US
v Gibson
Guilty Plea
In the first criminal conviction of the HIPAA era Mr. Gibson pled guilty of illegally receiving the health information of a cancer patient while working at a cancer alliance and using that information for obtaining credit cards, the illegal economic gain. The plea accepted a 10-16 month jail time and complete restoration of all funds to the credit card companies and the patient.
Doe
v Thompson
Dist. Ct. DC
A dentist had been reported to the Data Bank in 1994 by a medical center for an indefinite summary suspension. They then filed three months later a revised report stating that the action had been dropped after a positive psychiatric examination. In 2002, the dentist disputed the revised report since it infringed on his privacy. The Court agreed but also stated he did it many years after the two year statute of limitations had expired and granted summary judgment to the Bank. Top
US v El-Silimy
Filed
The US has filed an obstructing justice, fraud and other charges against Dr. Osama El-Sayed Abdella El-Silimy in federal court in Maine. He is accused of doing surgery without attempting more conservative approaches first as well as doctoring the medical records to support bill submitted to insurers. After the investigation started over $400,000 was removed from his clinic and deposited into his wife's name and then into a bank in the UK. He plans to plead not guilty. Top
Medical Staff v Ventura Community
Hosp.
Settlement
The year long law suit between Ventura California's Community Memorial Hospital and its medical staff is at an end. The ending was as was the beginning caused by money. In the beginning the hospital wanted to control the physicians by having a loyalty oath to control the physicians. The end came because the hospital was losing money due to the physicians and their patients going to other institutions. The Willie Sutton Law won out. The medical staff won the right to continue to control medical policies and the Board agreed not to unreasonably withhold its blessing. The medical staff is now recognized as a legal entity and soon will be under legislation at the state level. Medical staff bylaws can no longer be unilaterally changed by administrators. All physicians, even with outside competitive interests, are eligible to be elected to office. The illegally seized $250,000 was returned to the medical staff for whatever they wanted to do with the money, including suing the hospital. The medical staff agreed not to separately incorporate for two years as well as drafting a harassment policy that is enforced by the staff, not by the administration. The medical staff bylaws are now being redone in a physician friendly manner by a physician friendly consultant. Basically the staff got reversed everything the hospital did. A clear victory for the physicians and a clear loss for the Board. The CEO and Medical Director also lost their jobs and the hospital attorney (a divorce attorney for the ousted CEO) should follow.
Elastar Community Hospital
Bankruptcy Court
A bankruptcy judge has shuttered the Elastar Hospital in Los Angeles after it went from Chapter 11 to Chapter 7 and then could not pay its employees. This is the third ED in the LA area to close this year.
Phoebe Health v Rehberg
Filed
Phoebe Putney Health System in Albany, Georgia, has filed suit against the business manager of a local physician surgical practice of defamation, interference with the Phoebe system's business practices, fraud and violations of racketeering laws. The reason is the belief by the system that Rehberg is one of the people that has been sending faxes to local politicians and businessmen telling of the system's overcharging of uninsured patients and breaching their charitable mission as a non-profit. If there is any truth at all to the allegations of the system's over billing this would be considered a SLAP suit and would be illegal in some states. I would think the system would not want it's finances, billing practices and collection practices to come out of the closet. They will quietly drop the case at a later time now that they have garnered some publicity.
In a follow-up article Rehberg stated he was confronted by former FBI agents hired by the hospital and made threats against his family. The hospital admits hiring the agents. There have also been electronic devices found in two offices in the Albany Clinic. The chief of Surgery at the hospital has stepped forward and stated he has helped in the compiling of information against the hospital. All the information has been turned over to Attorney Scruggs who in turn has vowed to protect Rehberg and his family from the hospital thugs. Top
Ashcroft v Oregon
9th Circ
The 9th Circuit has refused a re-hearing on the three person decision that forbids the feds from going after the physicians DEA license and criminal penalties if they participate in Oregon's Right to Die program. It is expected that the Justice Department will appeal the decision to the US Supreme Court.
Schiavo v Florida
Florida Supreme Court
The sad case of Terri Schiavo goes to the Florida Supreme Court. Mrs. Schiavo is the brain damaged wife who has engendered a fight between the husband, who wishes the feeding tube removed and the parents and the State of Florida, who want the feeding tube to remain. The Court heard oral arguments and will render an opinion at some future date. Top
Cook v Newman
Mo. Ct. App.
Cook sued Newman and the professional corporation Joplin Surgical for medical malpractice. The plaintiffs won in superior court non economic damages of $1.64 million. This was reduced to by the court of appeal stating that the non-economic damages were not for three plaintiffs but only one. The attorney for the plaintiff asked the Court of Appeals to rehear the case based on a Florida Supreme Court decision stating the non-economic cap was per plaintiff. The Court will likely refuse the rehearing and the case will go to the Missouri Supreme Court.
Figueroa v St. Vincent Hosp.
NY Supreme Ct.
Figueroa sued the hospital and the physician for malpractice. The hospital went for summary judgment as the physician was an independent contractor. The court denied the summary judgment since the hospital knew or should have known that the physician's orders were wrong and did nothing about it. The nurse gave Percocet to a patient before the patient was examined by a house officer. The medication may have masked the symptoms and led to the delayed diagnosis and death.
Wilson v Athens-Limestone Hosp.
Ala. Supreme Ct.
The patient sued the primary care physician who happened to stop by the ED to say hello only. The physician had no other dealings with the patient. The court said there was a prior relationship between the parties but this did not translate into a present duty to assume control of the patient in the ED. Case dismissed for lack of duty.
Gillock v Keep Our MDs Initiative
Nevada Supreme Court
Gillock is a member of the evil trial attorneys who are suing to keep the Nevada initiative "Keep Our Doctors in Nevada" off the November ballot. The initiative further caps the amount of the money for pain and suffering, places limits on attorney fees and only make physicians liable for their own percentage of the fault. The trail attorney lie in stating that the passage would mean the taxpayors would pay for future medical expenses. The cap only covers non-economical expenses and therefore if care is proved in court, those damages are allowed, no matter how high.
Barnett v Mercy Lourdes
Ky. Ct. App.
Barnett sued the medical center for negligent infliction of emotional distress after his grandfather died following a botched surgery by an intoxicated surgeon. He lost since the hospital and surgeon owed no duty to the plaintiff.
Berges v Paschal
Filed
Berges had filed a malpractice suit against two physicians who treated their daughter for upper respiratory infections. The child got Steven Johnson Syndrome that causes rashes and apparently has left her permanently disfigured. They also have filed a second suit against the same two physicians in order to test the Florida law regarding the malpractice reform passed by the Legislature and the limits on pain and suffering. They believe the law is unconstitutional. Top
Vermont Med Board v Chas, MD
Hearing Scheduled
Dr. Chase, an ophthalmologist, has been accused by the Vermont Board of 136 counts of unprofessional conduct involving questionably unneeded procedures in 13 patients. The Board lied about part of its report about him. This was proven in court. Dr. Chase, after winning that case, agreed not to practice until after the hearing now set for September. This will be the first opportunity for the physician to present his side. Top
Falcon v Jordan
Dist. PR
Puerto Rico, for some reason, has the most cases on EMTALA published. Almost all the cases go against the plaintiff as they are attempting to use the statute as a malpractice one, which it is not. Here, the plaintiff sued the hospital for lack of stabilization prior to transfer. The hospital failed to give IV antibiotics prior to the transfer and she was transferred because of overcrowding and her insurance was unreliable. The District Court ruled against summary judgment and said the case should go to trial. Top
38 People v US
Filed
Thirty-eight people filed simultaneously in federal court for the return of their medical marijuana or its cash value that was confiscated by the law agents. They state they had legally used marijuana under the state laws, never prosecuted or they had the charges dropped. The cases were filed as criminal cases since the law allows the judge to return illegally seized property or its cash equivalent. The Oakland police have a policy of working with the people and have stated that if the case is dropped that the people can come down and talk to the officer who handled the marijuana. This would not allow any case law to be built on the issue. Top
Intact Dilatation and Extraction
The second of three decisions in the case against the Congressional law outlawing the procedure has been declared unconstitutional. The District Court judge in New York has followed the District Court in San Francisco to state that a procedure that bans an abortion procedure must include an exception to preserve the woman's life and health. The Government stated this was not necessary in this case since there is no medical information that the procedure has safety advantages for women. This was contradicted by the congressional record in which medical associations testified that the procedure may have safety advantages for some women. One more judge from Nebraska to be heard from before the issue is dropped or goes on to the US Supreme Court. Top
Shahinian v Weiss
Cal. Ct. Appeal
A hospital has chosen a general surgeon instead of a neurosurgeon to be the head of a new division of basal skull surgery. The neurosurgeon didn't like this and complained to the hospital, colleagues and those outside, including prospective patients about a non-neurosurgeon doing these procedures. Shahinian had had enough and sued for defamation and interference with business. The neurosurgeon asked the court for summary judgment as this was a suit filed only for the purpose of shutting him up. The courts did not agree with the neurosurgeon and stated the case could go ahead since the law exempts from dismissal any suit that disparages the business of the plaintiff. This is what happened in this case. Top
Pharmacies v Pharma
Filed
The high prices of pharmaceuticals in the United States is starting to come to a head. First Vermont filed suit against the FDA for not allowing Canadian drug importation. Now 19 California pharmacies have filed suit in state court against the pharmaceutical makers of illegally keeping the prices high in the state. They believe they should be charging the public the same price as their foreign counterparts charge. The Pharma answers by stating that they must recoup their research and development costs. I believe that this may be the first of many such suits. Top
AAPS v Thompson
Filed
Physician and groups have filed suit against HHS for what they believe is an illegal law. The law Congress passed, under Title VI, is that the physicians or institutions must provide translators for non-English speaking patients if their practice has a significant percentage of these patients. The service must be provided free by the providers. The suit alleges this law is an illegal intrusion into the physician's private practice and that the law will force physicians to leave practice where the percentage of the speaking is non-English. These arguments, although true, are not legal ones and so will probably not reach the trial stage. 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.