September 1, 2005 Recent Legal News




Fraud and Abuse

Peer Review



Product Liability

Who's Ankle Is It?


Hospital v Hospital


Blue Cross v ProCare

ProCare, a North Carolina physician backed group that is against Blue Cross going for profit, put out an item telling how Blue Cross spent over $500,000 for nonsense and in secret at the US Open Golf Tournament.  Blue Cross is now suing because their secret came to light.  They are accusing ProCare and an unnamed outfit of stealing their secrets.  This sounds like a retaliatory suit.  ProCare has also revealed the sending of the Blue Cross salespeople to St. Kitts, thereby wasting more money.        Top


 Jackson v Louisiana
La. Ct. App.

Jackson went to Conway Medical Center for infertility and hen to the University of Louisiana.  She was diagnosed with fibroids and blocked tubes.  There was one attempt to decrease the fibroids by Lupron but the patient could not return for the remaining course of therapy.  She went to Conway for surgical removal of her fibroids.  The consent stated that she may need a removal of her uterus, tubes and ovaries.  This occurred.  She sued and the lower court ruled for the state on both the medical malpractice and informed consent charges.  The Appeals court agreed on the malpractice but reversed on the informed consent.  The reason was there was nothing about early menopause in the consent and the court believed that most 34 year old women would not consent to the removal of the ovaries if told about early menopause.  The Court awarded $25,000 for the lack of informed consent regarding menopause.   

Mullins v Parkview Hospital
Ind. Ct. App.

 Mullin entered the hospital for a hysterectomy and specifically told her OB and Anesthesia that she wanted no medical students in the room.  A medical student attempted an intubation under supervision and inadvertently lacerated the patient's esophagus.  She sued and lost on all counts in trial court and had all reversed on appeal. Back to trial on battery and lack of consent. Dumb Doctors. 

Richard v Columb
La. Ct. App.

In an unpublished decision the Louisiana Court of Appeals affirmed the trial court finding of lack of informed consent for placing an unnecessary stitch to practice his sewing via the laproscope. This extra stitch lost the needle. There was no consent for any educational suture and so the patient won.  The trial court awarded $35,000.

Whittington v Mason
Miss. Supreme Ct.

 Whittington lost a testicle after having a vasectomy and sued for lack of informed consent.  The lower courts all went with the physician as did the Supreme Court.  The reason was that in informed consent cases the plaintiff must have expert testimony regarding the correct and material complications of vasectomy.  They had no expert and so lost the case.  

Phelps v Physicians Ins. co.
Wis. Supreme Ct.

 In an interesting case an unlicensed first year resident was sued for malpractice by the mother of an injured baby.  The question is what is the standard that the intern should be held to.  The answer in Wisconsin is a similar unlicensed intern.  Also since he was unlicensed he was not covered under the Wisconsin tort reform act.  The intern could be held to a higher standard if there was action such as not asking a higher level licensed person for help.  A secondary issue was a letter by a physician that reviewed the intern's action.  This letter was not privileged since it was not in a peer review context and the intern was not licensed.        

Antonelli v Halladay
Mass. Trial Ct.

In the largest verdict in Massachusetts med mal history the plaintiff was awarded $40 million.  The suit was against an OB in a bad baby case with mental retardation.  The problem was the OB waited five hours to do a C-Section.  The mother had gone to the hospital at 38 weeks because she could not feel the baby moving.  She was examined by Dr. Halladay, a new practicing physician just out of her OB residency.  The physician tested the fetus and found distress.  Instead of doing an immediate C-Section she tried Pitocin.  The family will not get the money since both sides agreed prior to the verdict that the most the family would get would be the policy limit.  

Patients v Inova Loudoun Hosp.
To Be Filed

Patients at the hospital who underwent endoscopy have been urged to get tested for HIV and Hepatitis.  The endoscopes were not cleansed in the disinfectant for the recommended five minutes.  The patients were those in a ten day window.   

Smith v Botsford Genl Hosp.
6th Circ

Smith weighed in a t about 600 pounds and presented to the hospital with an open femur fracture.  He was being transferred due to hospital's lack of ability to care for anyone his size.  He died in the ambulance from blood loss.  The suit was under EMTALA and the jury found for $35,000 economic damages and $5 million in non economic damages.  The appeal court stated that the EMTALA did allow the incorporation of state caps.  Michigan has a state cap on non economic damages at $350,000.  The award was reduced to conform since the plaintiff failure to stabilize claim would be malpractice under state law.  It was a great try by the attorney but fortunately it failed.   

Patients v NY Presbyterian
To Be Filed

The New York State Department of Health has criticized the hospital on its lack of infection control related to Legionnaires Disease.  They did not follow their own procedures and did not do much in communicating the problem.  Two patients died.    Top 


Morrall v DEA
DC Circ.

 The DC Circuit Court lambasted the DEA for their arbitrary and capricious removal of the DEA license from Dr. Morrall. The DEA labeled Dr. Morrell a liar and a drug abuser with nothing to back it up.  The DEA did not take into account the ALJ decision in favor of the physician.  They ignored it completely.  The Court ordered the DEA to give back the license.  

Kobrin v Mass. Board
Mass. Supreme Ct.

Kobrin, a psychiatrist, had his license revoked after he was found guilty of two counts of Medicaid fraud.  The Board's rationale was to protect the public , to discipline a physician whose conduct undermined public confidence in the profession and to continue the same discipline it had imposed on others for the same offenses.  The Court stated that the physician's prior revocation had been dismissed was not relevant in this matter.  He could be disciplined just on this convictions alone.  The Court also found the process unflawed and that no proof of lost public confidence or actual patient harm was necessary for revocation of the license.   Top

Fraud and Abuse

Pollak v Univ. Illinois

Dr. Pollak sued the University of Illinois for fraud in its transplant program.  The government joined the suit and the University paid $2.5 million to settle the allegations.  Dr. Pollak received $500,000 of that settlement.  Dr. Pollak was demoted and had his salary cut when he reported the fraud.  He now will receive an additional $2.5 million from the University and he will withdraw from the University.  The University needs to change attorneys.

US v Mount Vernon Hospital

 Mount Vernon Hospital in New York agreed to pay $2.65 million to avoid prosecution on a scheme hatched with Applied Management to steer alcohol and substance abuse patients to the hospital and then charged Medicare for the care provided by the kickback.  

US v Palazzo, MD

Dr. Carmen Palazzo in New Orleans has been charge by the government of receiving over $600,000 for medical treatments she did not perform.  She is the medical director for a psychiatric program at Touro Infirmary.  She also has been charged with 15 counts of failure to maintain records in a clinical study of Paxil.

California v Chiropractors

Four Chiropractors were arrested in California for insurance fraud.  The Chiropractors are Joseph Ambrose of El Dorado Hills, Richard Saucedo of Turlock, Pedram Vaezi of Modesto and Michael Yates of Stockton.  Saucedo and Vaezi were charged with filing false claims and practicing medicine without certification, a felony. The other two were charged with grand theft, worker comp fraud, unlawful rebates false insurance billings and practicing medicine without certification.  They face four years in prison plus large fines.  The four of them were employees of Med-1 Medical Center of Modesto, whose owner Wilmer Origel had been previously arrested along with the administrator and financial officer of the organization for fraudulent billing and other criminal charges.   

US v Covenant Health

Subpoenas have been issued to Covenant Health Systems with hospitals in Iowa and Illinois.  They wonder why the hospital in Waterloo, Iowa, paid out $1.9 million in charity care and another $5 million in money to three physicians, two orthos and one GI.  The hospital said they worked hard and are needed due to a shortage.  With that much money available there should be no shortage and the physicians would not admit to any other hospital.         Top

Peer Review

US v Lazar
WD Tenn.

The government filed criminal charges against Dr. Lazar for devising and executing a plan to defraud.  The government served a subpoena on the hospital for its peer review records of Dr. Lazar.  Dr. Lazar objected and the government claimed the doctor had no standing to object.  The court agreed that Dr. Lazar had standing to object as peer review is done with an expectation of privacy.  The Court went on to state that government subpoenas are for investigation of potential criminal actions and not to discover information regarding a pending prosecution.  The subpoenas were quashed.       

Palms of Pasadena Hosp. v Rutigliano
Fla. Dist. Ct.

 The estate of a deceased patient sued the hospital  for negligent credentialing. They wanted the names of the Credential Committee for deposition.  The hospital refused to give them and the Court stated that the names were part of the peer review process and protected.  

Virmani v Prebyterian Health Servs.

The physician was fired due to clinical concerns.  He sued in state court for breach of contract stating that the peer review committee did not follow the bylaws by not allowing a written rebuttal to the peer review conclusions.  The Court ordered a new peer review which was done again in house.  After he lost again, he sued again but this time for discrimination.  He lost since he had not utilized the argument in his original state claim and it was now closed.      Top


Okeke v Southside Hosp.

A 50 year old Black ED doctor was fired for poor work performance.  He sued stating he was fired for his race and age discrimination.  He also claimed that his contract was breached by not providing the required 90 day notice and that there was a hostile working environment. The physician won the summary judgment on race and age discrimination versus his performance.  He lost his claim for failure to promote and age discrimination.  The replacement was older than the plaintiff.  To trial or settlement.          Top 


Tomczak v Ingalls Hosp.
Ill. Ct. App.

The plaintiff filed a wrongful death action against the hospital and as part of the discovery requested the records of the 62 patients that were in the ED at the same time as the deceased.  The hospital refused and to court with the hospital stating that the triage times, treatment time, and triage acuity were privileged under HIPAA and the patient physician privilege.  The court did not agree stating that the privilege only applies when the information is to enable the treatment of a patient.  This is also outside the protected patient information under HIPAA.        Top

Product Liability

The Merck Vioxx Suit
Texas Trial Ct.

Merck has lost the first round of the multiple trials it faces over the potential heart problems with Vioxx.  The Texas Court by a 10-2 vote awarded the widow of a patient who died after taking the drug $253 million.  The award was automatically dropped to $24 million via the operation of law in the state.  The other problem is that the evidence connecting the death to the drug was tenuous at best.  The decision is on appeal but there will be multiple trial attorneys now trolling for patients, as these bottom feeders usually do. The plaintiff doesn't care if she ever sees any of the money but her attorneys do.   

Patients v Purdue Pharma

One attorney has filed about 1000 cases of product liability against the maker of OxyContin in Staten Island. The attorney states that the people are suing because they became addicts due to the drug.  This is idiocy.  The people knew or should have known of the potential for addiction.  Many of the people were already addicts.  Purdue has never lost a case regarding the drug and shouldn't here.  This is one PI attorney looking for the 15 minutes of fame.        Top

Who's Ankle Is It?

Texas Ortho v Texas Podiatrists
Travis County Court

How far up does the foot go?  The Podiatrists of Texas want to do ankle surgery and the Orthopods say no.  The Orthopods took the Podiatrists to court for their definition of the human foot as the tibia and fibula in their articulation with the talus or the ankle.  The Court sided with the Podiatrists and the medical people are appealing the decision.  Until overturned the definition holds.  At my hospital in California the Podiatrists have been doing ankle surgery for several years but only if they can show they are adequately trained.  Most states allow Podiatrists ankle privileges.  The attorney for the Orthopedic Society states it is illegal for Podiatrists to do ankle surgery.  She and the judge disagree and I believe the judge and not her.        Top


NY v Rabbi Fischer
Court Order

Rabbi Fischer in New York City has been prohibited from performing circumcisions due to the possible transmission of Herpes type 1 virus to three infants, one who died.  The cause is the misplaced belief that the Hasidic and many Orthodox Jews believe that as part of the ceremony that a drop of blood is suctioned into the mouth of the Rabbi. A professor at Yeshiva states that oral suction violates Jewish law which states that one cannot expose or accept a risk to health unless there is true justification for it.  Here there does not seem to be a true justification.        Top

Hospital v Hospital

Doctors Hospital v Chino Valley Med Ctr.
Calif.  Filed

Two loser hospitals sued each other for bogus billing and patient stealing.  Doctor's Hospital in Montclair California sued Chino valley Medical Center for stealing its managed care patients, admitting unnecessary patients and submitting bogus bills for those patients.  The suit included some physicians and stated they steered the patients to the Chino Hospital for unauthorized services.  The suit was filed under RICO for mail and wire fraud. In 2004, Chino had cancelled all its HMO contracts and filed for bankruptcy.  Chino also refused access to HMO hospitalists to examine the HMO patients to determine if they could be discharged or transferred.  Chino apparently had a memo stating no patients of HMOs would be transferred to in network hospitals even when stable.  Chino is owned by Veritas Health Services, eight physicians and two medical groups.        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.