September 1, 2011 Recent Legal News




Peer Review and Employment





Campbell v Riley Children's Hosp.
Indiana Ct. App

The court has ruled that once a medical review panel has issued a ruling on a case, no other plaintiffs may piggyback on that ruling.  This keeps plaintiffs from adding claims just before trial.  In Indiana the plaintiff must bring all the facts to a pre-trial hearing and the hearing issues a ruling.  this ruling may be used in court as an expert.  The ruling will be appealed to the state Supreme Court.  This means that there must be full discovery prior to bringing the case to the hearing panel and will make plaintiff attorneys more careful what cases they take.    

Seaton v Patterson
Kentucky Superior Ct.

In a upcoming trial Mr. Seaton is claiming his penis was removed when all he consented to was a circumcision.  He also claims he was not given an opportunity to get a second opinion.  In fact, Mr. Seaton had a penile cancer found during the circumcision.  The issue was should the cancer have been left in place to potentially metastasize or should surgery have been done then. Was there a better or equal treatment for the cancer.  The Seatons also sued the hospital which has already settled for an unknown sum.    

Howell v Hamilton Meats & Provisions 
California Supreme Court

The plaintiff was injured when a truck owned and operated by the defendant made an illegal U-turn and hit her car.  She required spinal fusion and treatment in two hospitals.  The hospitals sent a bill for $100,000 but accepted $60,000 as payment in full from the patient's insurer.  The patient sued for the full amount billed and the court of appeals agreed.  The Supreme Court overruled and said one can only sue for the amount paid not the amount billed.  

Grant v Prime Healthcare
Ca Ct App

Grant attempted to sue Prime Health and their nursing home for elder abuse.  The lower court and the court of appeal stated that even if negligence existed it did not rise to the amount needed for elder abuse.  The standard must be greater than gross negligence in order to be neglect as defined in the statute.  

Medina v Medina General Hospital
Ohio Ct. App

Medina sued a hospital and an anesthesiologist for medical malpractice.  As part of discovery the patient asked for records of the anesthesiologist as to all records she signed off on and how she charted airway pressures. The hospital denied the request but lost since the plaintiff was asking for not patient records but information in those records which is not protected by peer review or HIPAA.

Acevedo v Doctor's Hospital
Florida Dist Court

Acevedo sued the hospital for negligent oversight of a physician in a med mal case.  The hospital filled out reports for the hospital attorney and refused to turn the reports over during discovery since they are confidential attorney work product.  The court disagreed since the attorney did not do the work there is no work product and the reports must be turned over to the plaintiff as do incident reports and other comments by hospital employees under Amendment 7.

Cruz Vazquez v Mennonite Gen. Hosp

In a case of a hospital screwing itself the patient came to the hospital in her third trimester with spotting and vaginal discharge.  The ED checked with the patient's OB and then discharged her.  She delivered a still born two days later and sued under EMTALA.  The hospital had a policy regarding the treatment and evaluation in this type of case and did not follow it.  Summary judgment denied and the case will go to court or settlement.  If a hospital has a policy, they must follow it in all cases.   

Garza v Merck
Texas Supreme Court 

Gazra died after taking Vioxx and the family sued.  They won in the lower court a judgment of $32 million.  That is now gone and they can not share in the settlement of the class action suit as they were excluded.  The attorneys also get nothing which is really good news.

McCall Brister v HCA
Tenn Ct App

Although stated not to be considered med mal the court stated that a hospital may be sued if a person attacks another on the hospital premises.  The hospital has a duty to keep people safe in their surroundings.  In this case a man attacked a female voluntary mental patient while she was taking a shower.  The attack was stopped by attendants but she sued.  The court of appeals stated that premise liability was a real tort in overruling the trial court. 

Patients v National Taiwan University Hospital
To Be Filed

 I don't know the med mal procedures in Taiwan but five patients were accidentally transplanted with HIV infected organs.  the HIV status of the donor was given via telephone and not checked.          Top


Freedom Watch v US
Fed Ct

Larry Klayman, an attorney, and his organization Freedom Watch have won a small victory for open government.  They sued in 2009 saying the meetings between the government, mainly Obama, and the various medical organizations were done illegally behind closed doors.  The judge is allowing the case to move forward even though the case may be moot since Obamacare was passed.  The group now will proceed with discovery to see if the parties are still meeting secretly.  The case has embarrassed the administration who promised transparency but has not delivered on that promise.   

Veterans v VA

The administration is challenging a federal appeals court decision that will allow veteran's groups to go to court to challenge the VA mental health lack of caring.  The Obama administration is appealing the ruling to the full 9th circuit.     Top


US v Baptist Healthcare

Baptist Healthcare and Hardin Memorial Hospital managed by Baptist of Kentucky both settled with the feds for billing for DRG codes that were erroneous.  Baptist agreed to pay $5,785,000 and Hardin will pay $3,115,000.  That is more than a simple mistake.  The money must be paid by the time you read this.

US v Ngari

A DRE company owned by Ngari illegally paid recruiters who were also convicted to get people who did not need power wheelchairs to give up their information.  Also convicted was Dr. Sofjan Lamid prescribed the false prescriptions.  All are from Baton Rouge.  Sentencing is to come later.    

US v Kubacki

Dr. Joseph Kubacki, the Department chief of ophthalmology at Temple University has been convicted for healthcare fraud.  The government stated that between 2002 and 2007 staff employees would stack patient charts outside the physician's door.  These patients had been seen by other physicians but Dr. Kubacki would then make some notes in the chart to make people believe that he also saw the patient and bill for the false notes.  He faces a sentencing of restitution of over $1.5 million plus fines up to $36 million and 87 months in prison.  

US v Nunez

Dr. Jose Nunez has pled guilty of healthcare fraud in a $25 million scheme.  He wrote false home health prescriptions  for patients that did not need it.  He also falsified patient records.  

US v Physicians

The government had filed charges against at least seven physicians for prescribing meds for a pill mill.  The physicians are are in South Florida.  Two other physicians associated with the same mill had their licenses taken away last year for over prescribing.  They are Roni Dreszer and the father Jacobo Dreszer.  

US v Rosario

Jose Rosario was sentenced to 48 months in prison and repay $10 million to the Medicare program for running a injection a infusion scam in Detroit.  He had previously been convicted of the same thing in South Florida.  the prison sentences will run consecutively.  He will be gone for many years.  

US v Gant

Carol Gant, Occupational Therapist, pled guilty of Medicare  fraud in Michigan.  She falsified records and billed Medicare.   Top

Peer Review and Employment

Hall v OhioHealth
6th Circuit

Hall was a resident physician who was terminated for drug abuse and professional misconduct.  He sued under the ADA for reinstatement after he went through a treatment program.  The court ruled the program did not have to reinstate him since the physician's reasons for the hospital not reinstating him were speculative.  

Bansal v Mt. Carmel Health
Ohio Ct App

Dr. Bansal was terminated from the hospital call schedule.  He sued to get back on the schedule claiming multiple state law claims.  Some of the claims were tortious interference with contract.  There was no contract either with the hospital or the patients.  Another was discrimination.  That also went out since he was not employed and the court refused to allow the 20 IRS rule to come in.  He obviously lost the case at summary judgment and appeal.

Roudachevski v All-American Care Ctrs
8th Circuit

Dr. Roudachevski lost his privileges at a residential care facility.  He originally was the medical director of the unit.  He stopped working when he was replaced as medical director.  He was then rehired as medical director six months later.  After six months he was given a 30 day notice of termination.  He met with his supervisors and stayed on as the director of geriatrics and infection control and continued to see patients.  Two months later he had a disagreement with procedures and filed his resignation as director but stated he would still see patients.  The following day he was terminated due to failure to comply with internal policies and procedures.  At the time of his termination he had 68 patients under his care.  The patients were given the choice of staying in the facility and being treated by a different physician or to be transferred to another facility to continue treatment with Dr. Roudachevski.  They all stayed.  He then sued in Arkansas state court for an injunction stating the action caused irreparable harm to his physician patient relationships.  The case was then removed to federal court and of course he lost just like he would in state court.

Assaf v Trinity Med Ctr.
CD Ill

The physician was the head of the hospital's Epilepsy Center for four years and was then terminated.  He sued and the two sides came to an signed agreement.  When the document was signed the physician withdrew his charges against the hospital even though some items were not settled in the agreement.  Later the hospital issued an ultimatum either accept their tems or leave.  Dr. Assaf again sued for breach of contract.  The hospital stated that the signed agreement was not final therefore carried no weight.  The court disagreed saying the signature was by one who could bind the hospital and there was nothing that said that it was not a final contract with some issues needing to worked out.  The hospital lost and the case will go to court with the resultant bad publicity for the hospital due to their bad faith.

Ioppolo v Rumana

 Dr. Ioppolo, a neurosurgeon, testified in court in a med mal case against Drs. Rumana and Cuffe.  The two neurosurgeons settled the case in Florida and then turned in Dr. Ioppolo to the Society of Neurosurgeons for his professionalism.  He was sanctioned by the organization and sued the Society and the two neurosurgeons.  The organization moved to dismiss the case and the court agreed since there were no published defamatory statements made outside the Society.          Top


Scally v Texas Medical Board
Tex App Ct

 Dr. Scally had his license removed for selling anabolic steroids after a hearing in front of an ALJ.  The physician filed suit stating he was not allowed due process by not getting a jury trial and only a hearing in front of the ALJ.  The court agreed that the medical license is a property right but the hearing in front of a judge is as good as a jury trial for due process.   

Shah v Illinois

 Two law suits were filed by physicians against the Medical Board of Illinois for illegally taking their licenses.  Drs. Mohammed Khaleeluddin and Ashvin Shah sued because they were told their licenses were to be revoked by the state due to a new law that prohibits people that were convicted of sex crimes, forcible felonies or misdemeanor battery of a patient from having medical licenses.  The two physicians state they have already been disciplined by the state and the law should not be retroactive.  Khaleeluddin was convicted of a misdemeanor battery as a result of a misconduct with female patients.  Shah was convicted of battery.  The law does not state it is retroactive but the board has interpreted it as such on its own.      Top


Morris Institute of Justice v Arizona 
9th Circuit

The 9th Circuit ruled that Arizona's attempt to place mandatory co-pays for Medicaid patients had no basis except to cut the state's Medicaid budget.  Federal law allows waivers by HHS for research or demonstration value only.  The Secretary of HHS allowed the co-pays but the Court overturned Sebelius.  Arizona may appeal to the full court.

DAC Surgical v United HealthCare
SD Texas

Physicians using the surgical center were charged a facility fee.  The physicians billed the insurers for this fee and were reimbursed until 2009.  At that time United sent notices of overpayment to the physicians demanding the repay the facility fees paid to them.  The physicians via their association sued and the insurer asked for arbitration as per the physician contracts.  The courts stated that since the physicians were not individually suing but the organization was arbitration was not required.  To court.

Wound Care Centers v Catalne
WD Penn

The Wound Care sought an injunction from physicians and a hospital from a hospital less than 20 miles away from a prior location of the center.  The court refused to allow the Center to amend its plea and therefore dismissed the case.    

Harlick v Blue Shield
9th Circuit

Harlick has anorexia which was treated in a hospital with no problems with payment.  When her physicians recommended she be hospitalized in a special hospital in Missouri, her coverage was denied.  She paid for it and sued the insurer.  Now all insurers must cover mental health to the same amount as physical ailments.  Blue Shield just not only screwed themselves but all others by denying the benefits.          Top


Delaware v Bradley

A jury convicted Dr. Earl Bradley, pediatrician, of molesting his patients and sentenced him to life in prison.  The former physician was sentenced to 14 life sentences for 14 rapes.  He was also sentenced to 165 years in prison for sexual exploitation of children.  He had sex tapes of 13 hours of sex crimes.        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.