September 15, 2004 Recent Legal News
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Malone v VA
To be filed
Mr. Malone was diagnosed erroneously eight years ago of being HIV positive. This caused depression, weight loss and multiple visits to support groups since be believed he was going to die. He had come to the VA with a positive HIV test from a testing firm. the VA did another test and it was negative. The VA never told Mr. Malone of the result of the second test.
Darviris v Petros
Mass. Supreme Ct.
Darviris underwent a fissurectomy and signed a consent form authorizing that procedure and others that the physician deemed necessary. She had a unconsented to hemorrhoidectomy. She sued for not getting informed consent after she had problems with the hemorrhoidectomy under the state consumer fraud statute. Why would one do that? Could it be that someone screwed up and filed after the three year statute of limitations for malpractice but within the four year statute for the statute? The Court said Ferget About It. No Way are you getting this in.
Jaramillo v Heaton
New Mexico Ct. App.
The New Mexico Court of Appeals has overturned the New Mexico statute of limitations on children that has been in place since 1976. The old statute said to file by the age of 9 if they were 6 or younger. Now they have to the age of 19. The case was of a three year old boy who developed brain damage one year after his pediatrician discontinued his Phenobarbital and sent him to the University of New Mexico. The court said the law violated the child's due process because it's unreasonable to require a minor to bring a claim by age nine. That, of course, was not the issue. The issue is how long post incident is the statute, not how old the person is. The case is being appealed to the New Mexico Supreme Court.
Does v Kaiser
Not yet filed for Arbitration
Kaiser should be looking at a potential major expense. They have jsut announce that for the past six months endoscopes used on their patients in the Redwood City GI lab have not been properly sterilized. The people are at risk for Hepatitis B and C. There are over 2000 patients who will need to be tested.
Cash v Durham County
Hospital
NC Settlement
There was a settlement in the lawsuit between the patient, a newborn with CP, and the hospital. The hospital has agreed to fund a lifetime payout of $13 million to the child. The problem was tied to the new JCAHO regulation regarding early discharges and not watching children for jaundice and Kernicterus.
Ritter v St. Joseph Hospital
Filed
The family of John Ritter has filed a malpractice suit against the hospital for misdiagnosing the thoracic aortic that killed him. Mr. Ritter collapsed at the film studio and was taken across the street to the hospital where he was never seen before. He was initially diagnosed as having a heart attack and then pericarditis. The aneurysm was not found until autopsy. The law suit states that if found immediately proper treatment would have saved his life. This is a stretch. When a male collapses while working it is reasonable to assume a heart attack. It is not reasonable to get an emergency CT scan to look for zebras. Top
Malek v Blue Cross
Cal. Ct. App.
Malek sued Blue Cross is state court for improperly denial of fertility treatment. Blue Cross moved for dismissal and arbitration as under the enrollment form. The problem is that the enrollment form did not comply with the California Health and Safety Code 1363.1 which states the arbitration must be prominently displayed just above the signature line. The form did not do this. The trial court and the court of appeals both agreed that the arbitration clause was void by law. To jury trial.
North Valley Emergency v Santana
Ariz. Supreme Court
The Corporation sued its employees who left to start a competing ED group. The Corporation attempted to arbitrate but the courts said that the Arizona law requiring arbitration does not apply to any employment situation. To Court. Top
Cook County v NLRB
Ill. Ct. App.
Are physicians employees or management? A union filed to represent the physicians at a hospital run by Cook County. The County opposed the filing stating that the physicians are managerial. The case went to an ALJ who ruled that the physicians were employees since the majority of their time was on patient care and any decisions they made in committees were not final are came under review. The County appealed to the ILRB who backed the ALJ. The county then sought judicial review. The Illinois law states that there is a two prong test for who is a manager; (1) the person must be predominately engaged in in executive and management functions and (2) the person must exercise responsibility for directing the effectuation of management policies and procedures. The physicians did not do either. They make no policy and only advise. They were not supervisory since they could not discipline residents and only complain to the residency chair. The answer is that the physician is an employee in this setting and can be represented by a union.
Slaughter-Cooper v Kelsey Med Grp.
5th Circ.
Dr. Slaughter-Cooper was an employee of the Group. The contract stated that it would terminate after three months of disability. The physician was injured on November 7, 2000. She then received FML benefits starting the following day for 12 weeks. The expired on January 31, 2001. In mid February she received a letter she was now on inactive status. She was released to return to work on April 1, 2001. She was terminated as of that day since they had hired someone to take her place. The Group then told her patients that she had left to pursue other professional interests. The physician sued for breach of contract, defamation, and for interference with progressive business relations. The District Court dismissed all complaints. The 5th Circuit agreed. The rationale was once the contract terminated automatically on February 15, 2001, there was no contract to breach. There was no defamation because the lie the clinic told wasn't a bad lie, and was substantially true.
St. Joseph Med Ctr. v Med Loss Fund
Penn. Commonwealth Ct.
St. Joseph was sued and settled two suits against it for the sexual assaults of an EKG technician. It then tried to get money from the pool for the "malpractice" settlements. The pool refused to pay and St. Joseph sued. The Court said this was negligent credentialing and not malpractice so the pool does not pay and the hospital eats it.
Meyers v Medical Ctr. of Del.
3rd Circ.
Valaria Myers, five years old, had stopped breathing and was taken to the ED. She died and later the physicians did a secondary survey of the child. They suspected sexual abuse and filed a notice with the authorities. After an investigation, no abuse was found. The father filed a malpractice and defamation claim. He lost the malpractice claim in summary judgment since he did not have a qualified expert. He lost the defamation claim since it was protected speech unless malice. There was no malice. It always does me good to see these cases since I know the attorney lost money taking a case that should never had gone to court.
Stogsdill v Healthmark Partners
8th Circ.
Stogsdill was a patient in an Nursing Center. There was an order to check the patient every three days for a fecal impaction and to notify the physician if so. The patient wasn't checked for nine days and had deteriorated in condition. The doctor was never notified. The doctor made rounds and saw the patient slumped over her wheel chair. She was immediately admitted to the hospital and had surgery for a perforated bowel and later for sepsis but she died. The executor sued for malpractice and won $500,000 in compensatory damages and $5 million in punitive damages. the defendants appealed. The Court said the punis were too high and reduced them to $2 million or a new trial. The amount was out of line with the BMW v Gore case decided by the US Supreme Court. I don't believe that there should ever be punitive damages in a malpractice case. Punitive damages implies malice and no body goes to work stating that I believe I will commit malpractice today.
Mississippi v Does
Arrests Made
As I am sure most know Mississippi has been a hot bed of medical malpractice claims and high jury verdicts. Now ten people have been arrested and more will be in a high verdict case in the Fen-phen cases. The investigation is looking into the jury selection and how they became involved in the suit where many of the people are kin. This reminds my of The Runaway Jury. Could it have been based on a real case?
Higgason v Nazareth Health
Ky. Ct. App.
An employed physician blew the whistle on another physician by reporting his actions to the Medical Board and the hospital. The hospital then made his life at the hospital unbearable causing him to quit. He sued the hospital for constructive discharge, even though not an at-will employee, and won. The problem for the hospital was a law that requires a physician report of another within 10 days of the incident. Since Higgason was doing what was required, the hospital retaliation would be wrongful. To trial.
Prime Med. Assn. v Ramani
NY Supreme Ct.
A physician was recruited by a hospital via a USDA visa. The contract with the hospital contained a non-compete clause. This clause was deemed unenforceable since the reason for the program was to bring physicians into underserved areas and to enforce the clause would be to be against public policy.
Private Healthcare Sys. v Torres
Conn. App. Ct.
The physician was removed from a managed care panel and sued for arbitration to get back on the panel after rehabilitation. The arbitor agreed with the physicians and the managed care panel appealed. The Court agreed with the arbitor and since the physician never lost hospital privileges or licensure and all criminal charges were eventually dismissed the panel should take the physician back. Top
Maduka v Sunrise Hospital
9th Circ.
Maduka, a Black anesthesiologist had two instances of patients turning blue while under anesthesia. One died the other had no untoward results. The cause was displacement of the ET tube. The physicians involved did not file any complaint but two nurses did. The doctor was peer reviewed and not allowed to know who the complaining witnesses were nor to cross examine them, a violation of due process. The doctor's privileges were removed and he sued in federal court for discrimination and defamation. He lost and appealed. The 9th Circuit reversed on the discrimination claim since non-black physicians were not treated like he was. The law, according to the 9th Circuit, is that all the plaintiff must show to go to trial is a simple conclusionary pleading of discrimination. The case was remanded to determine if the pleadings did that. I have no idea as to the rightness of the decision by the hospital or the court but if this causes the hospital pain for not allowing due process, I am all for it. Top
600,000 MDs v HMOs
11th Circ
The 11th Circuit gave the go-ahead to the class action law suit by the nations physician against the HMOs for racketeering under RICO. Some state class action suits were dismissed. California state suit was not appealed and remains in place. The trial is now scheduled for March, 2005 but might be delayed again if the HMOs appeal to the US Supreme Court. It is my opinion that this ruling, if left in place, will be the impetus for the remaining HMOs in the suit to settle as did Aetna and Cigna.
Albany Surgical v Phoebe Putney
Hospital
Georgia Supreme Court
The Georgia high court ruled that the CON in the state was constitutional and against Albany. Albany refused to file for a CON since they knew they would lose. Instead, they decided to take the whole process to court. Albany has lost on every level. Dr. Bagnito of Albany looked into Phoebe while researching his case. He found that the hospital was charging more for indigent patients than the medically insured patients. Dr. Bagnito then contacted Mr. Scruggs, who has filed the multitude of suits around the United States against not for profits. Albany is now going the legislative route to attempt to change the law.
Michigan Medical Soc v Blue Cross
Filed
Blue Cross and Shield of Michigan has a new PPO plan for UAW members. The contract was offered to physicians with office visits the same as an older plan. It was a take if or you don't get any other contract tying arrangement with antitrust considerations. The Michigan societies sued to stop the potentially illegal plan. Top
Partial Birth Abortion Ban Act
Planned Parenthood v Ashcroft
USDC
It is now three for three. A Federal judge in Nebraska has agreed with the judges from the East Coast and the Left Coast that the Act is unconstitutional. He gave the same reasons as the other two. There is no out for the women involved. Top
US v O'Connor, MD
ALJ
A Wisconsin ALJ heard a case involving a physician false reporting of pulmonary testing. The ALJ heard a decision by the HHS IG office. The ALJ agreed that Dr. O'Connor should be banned from the federal medical programs for 7 years and pay $126,000. 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.