September 15, 2003 Recent Legal News
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Physicians v Cigna
USDC Fla.
Cigna still hopes to settle the large suit against them by the nation's physicians. Judge Moreno will hear the arguments for settlement. Cigna attempted a deal last year for a measly $50 million that was accepted by the Illinois physicians but rejected by the remainder of the nation. The new one is almost $500 million. The settlement may cost Cigna about $30 million in refiled claims that if rejected by Cigna will be reviewed by a third party panel. Cigna would also set up a $15 million foundation for healthcare issues. The agreement would also change the way Cigna deals with claims in general. There would be mutual agreement on the software used to assess claims. This settlement is akin to the Aetna settlement. The other insurers are willing to continue to pay huge attorney fess to fight for the right to continue to screw the medical profession.
The day after the settlement was announced, Judge Moreno ruled the agreement was fair and agreed to it. This only covered physicians and the non-physicians are still attempting to work out an agreement. One of the original complainants against Cigna stated the agreement was nonsense. He believes the attorneys should get much less than the $55 million allotted to them. He also believes the medical societies did nothing and should not receive or direct the money in the charitable fund of $15 million.
The remainder of the defendant HMOs are in the Federal Appeals Court attempting to have an order by the District Court allowing a class action status against them dismissed. These defendants are Anthem, Coventry, HealthNet, Humana, PacifiCare, Prudential, United and Wellpoint. The 11th Circuit does not seem favorably inclined to give the insurers their wishes.
In Cincinnati Humana is attempting to break a law suit against them for paying too little and too late. They are going to individual groups of physicians and having them sign agreements that they will be paid more money in return for dropping Humana from being sued. The physicians that have signed will get more money now than they would get from the suit but it does not change the way the insurer practices. The doctors will get screwed later.
California Emerg. Physicians v
PacifiCare
CA Ct. App.
The California Court of Appeals has again stated what the California Department of Managed Care has stated. If the HMO does not pay for the care because their IPA has gone belly-up, it is too bad for the physicians. The physicians may only look to the IPA for payment and not sue the HMO after the IPA becomes insolvent. The ED also may not go after the patient for the money. In simple terms, the hospital and the physician eat the cost of care. Top
US v Wo/Mens Alliance for Medical
Marijuana
USDC CA
In a ruling that was no surprise to anyone, the federal judge who is pro medical marijuana but still a federal judge ruled that federal law preempts state law in his court. He denied an injunction to prevent the feds from raiding the alliance. This will be appealed but will lose. Top
Ali v Medstar
DC Superior
Another physician has been fired from his medical staff appointment and sued due to breach of the bylaws, which he states is a contract. That may or may not by true in that jurisdiction but the court bypassed the argument and stated the hospital had immunity under HCQIA.
Lo v Provena Covenant Med. Ctr.
Ill. Ct. App.
The hospital board summarily suspended the cardiac surgeon Dr. Lo for surgical problems and refusing direct supervision and after the medical executive people refused to act. Dr. Lo had been on direct supervision, since his mortality rate was twice the national average, which required the supervising surgeon to see the patient pre-op, stay during the entire procedure and see the patient post-op. Dr. Lo decided after some time that he was no longer going to continue to do this and scheduled a case without supervision. Dr. Lo sought and received a temporary restraining order ordering him back on staff. The hospital appealed. The court of appeal agreed with the hospital since the hospital had broken no bylaw and had the ultimate authority to act even though it was inconsistent with the medical staff bylaws. The court said bylaws that restrict the board's authority would be against public policy.
Richman v Rideout Hosp.
Dr. Richman, a cardiac surgeon, was originally booked into jail for being under the influence of a controlled substance, Ambien. He went through rehab and was found top have a treatable bipolar mental illness. He returned to practice at Rideout but had already prior to his booking written letters stating the cardiologists were doing unnecessary procedures. The hospital denied all charges. The hospital summarily suspended Dr. Richman for allegedly pleading nolo contendre on a misdemeanor cocaine charge several weeks prior. He has now gone to court to force Rideout to allow him back on staff and to schedule a fair hearing which he states he was unfairly denied. Top
Shofner v Baptist Health
Ky. Ct. App.
A hospital was left on the hook for the alleged malpractice of an independent contractor ED physician. The hospital did not clearly show the independent status since the hospital stated how many hours the physician worked, provided the physician with supplies and support, approved the fees charged and maintained the medical records of the physician. The hospital also had the ultimate authority to terminate the physician. If the hospital wants the much control, they need to pay the piper.
Shands v Juliana
Fla. App. Ct.
The hospital conceded a perfusionist was negligence but was also found to be vicariously liable. The perfusionist worked for a group subcontracted to the hospital. There was notice to the patient that the perfusionist was independent it was assumed he was a hospital employee.
Eppard v Kelly
Va. Cir. Ct.
In another admonition to hospitals and medical staffs to do things correctly, the court stated that ad hoc informal committee and a risk management committee were not privileged under the peer review statutes. The information from those committees were allowed into court to show negligence. The risk management committee was for insurance since it was not dominated by physicians and did not exist primarily to improve quality of care.
Five Patients v
Carson-Tahoe Hosp.
Filed
Five patients to date have filed claims against Carson-Tahoe Hospital for acts committed by a male nurse in the ED. The nurse has admitted drugging and fondling two patients. He used cocktails of controlled substances. The suit states the hospital failed to ensure the safety of their patients. The problem will be for the patients to show that the nurse was acting in the scope of employment. Many jurisdictions state when things like this occur that the person was acting outside of their job description and therefore not within the scope of their employment. This gets the hospitals off the case. Top
Smanyk v Chester County Hosp.
Penn. Settlement
The plaintiff and her father are both deaf and communicate by sign language. The two hospitals she went to with her father, now deceased, did not provide sign language interpreters for them. She sued and of course won. Title 6 and the ADA states that reasonable accommodation must be given to those with disabilities. In this case, interpreters. This has been previously shown in many cases in the country. The problem has always been is it really needed and who pays. The courts have come down on the side of the patient and the physician or hospital must pay. Top
US v Chase
9th Circ.
The 9th Circuit made an interesting distinction. If a patient tells a psychiatrist that he/she is going to harm another specific person the psychiatrist should notify the police and or the people involved. This is consistent with Tarasoff. The kicker here is that the psychiatrist should not testify in court against the patient. This continues a split in the courts. The 10th Circuit has stated the physician may testify and the 6th Circuit has stated the psychiatrist should not testify. The government is considering appealing the Chase case to the US Supreme Court to unify the decisions. Top
Scottsdale Healthcare v Arizona
Health Care Cost Containment Sys. Admin.
Ariz. Supreme Ct.
The Arizona Supreme Court ruled in a case involving the hospitals treating illegal aliens a new test for determining reimbursement. The State must pay for emergency medical conditions and the Court ruled that the emergency ends when the acute symptoms are so severe that not to treat them would put the patient's health in jeopardy. The Court stated that it was never the idea that chronic illnesses would be paid for by the state. Top
Community Health Plan of the
Rockies v Colorado Dept. Health
Col. Dist. Ct.
The District Court ruled that the HMO and the State were under contract to treat Medicaid patients. The state made errors in setting the capitation rate and now owes the HMO approximately $13.7 million in past damages and interest. Top
Temple Univ. v Healthcare
Management
PA Super Ct.
The Pennsylvania Superior Court ruled that after HMOs and Hospitals break off their contracts and the hospital continues to provide emergency services to the HMO patient, the HMO must pay. The issue is, how much. The Court stated that the hospitals usual and customary fees are not reasonable since they only get this about five per cent of the time. The more reasonable fee is the difference between the amount the HMO would have paid the hospital if they would still be a member and governmental insurance companies. 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.