NOVEMBER 2000 LEGAL OPINIONS

Khajavi v Feather River Anesthesia Medical Group (Quality of Care)
California Court of Appeal, 3^rd

In a case decided this month an anesthesia medical group terminated a physician employee under an oral contract for a specified term prior to the end of that term. This was  due in part to a dispute between the plaintiff anesthesiologist and an ophthalmologist whose brother was head of the anesthesia group.  The disagreement occurred in the operating room over a quality of care issue.  The trial court ruled by a non suit for the group but the appeals court overturned the trial court stating that it is against public policy to terminate a physician in retaliation for the physician’s advocacy of medically appropriate health care (Business and Professional Code section 2056).  The case returns to the trial court on the issue of wrongful discharge and possible damages. The California Medical Association filed an Amicus brief in support of Khajavi.

University Clinical Associates v. Intracoastal Health Systems (Med. Staff v Board)
Florida Circuit Court

The hospital board did not confirm a physician elected as chief of staff.  The physician sued for the position.  The court ruled for the physician and stated the board breached the covenant of good faith inherent in the medical staff bylaws.  The non-confirmation was due to the physician’s current legal action against the hospital on an unrelated matter and had no quality of care implications.

In the October 23 2000 Modern Healthcare a second case was reported.  The physicians at Exeter Hospital in New Hampshire are suing their Board of Directors for removing their Chief of Staff as a nonvoting member of the Board.  The Chief of Staff believes that it is due to his outspokenness on quality of care issues at the hospital. 

A similar instance of the refusal to seat a Chief of Staff happened years ago at Eisenhower Hospital in Palm Springs, California.  In that case the trial court ruled in favor of the Board since there was nothing in the bylaws to prohibit them from arbitrarily and without explanation not allow the elected Chief of Staff to be seated.  The Board after winning the lower court trial agreed to the seating of the Chief of Staff.  This caused Medical Staffs to place a notation in their bylaws and rules and regulations that required explanation for any Board action that went against the Medical Staff wishes.

King v. George (Medical Records)
Georgia Supreme Court

A woman involved in an auto accident was taken to a hospital emergency department and given a blood alcohol examination.  The state subpoenaed the hospital medical records to charge the woman with a DUI.  The court stated that the state could not use medical records in the control of a physician, hospital or health care facility without the patient’s consent in a criminal case due to privacy rights under the Georgia Constitution.

Sabatier v. Barnes (Peer Review Records)
Eastern District Court of Louisiana

The physician plaintiff was terminated from the staff of a hospital and subpoenaed a non-party hospital for his own peer review records. The federal court allowed the physician to obtain his records since there is no federal law that prevents this disclosure.

In re Ching (Peer review Documents)
Texas Court of Appeal

A cardiac surgeon sought an order to obtain peer review documents to help sue two hospitals for suspending his surgical privileges. The trial court denied the physician.  The court of appeal reversed and stated the trial court should have conducted a closed-door examination of the requested documents to determine their relevancy prior to the decision.

Johnson v. Wiseman (Peer Review Records)
Penn. Trial Court

Plaintiff filed suit against the physician defendant for negligent wrongful death of their stillborn child. About one month after the death Wiseman and other physicians met to discuss the delivery.  While under oath, at deposition, Wiseman refused to answer any questions about the meeting stating it was protected under the state peer review protections laws.  The plaintiffs moved to compel Wiseman to answer the questions and the court agreed.  The court stated that the discussion was not protected since it was only an “ad hoc” committee of an “ad hoc” group.  This is a good lesson for medical staffs if they wish to keep their peer review protection status.

Tirado v Lehigh Valley Hospital (Peer Review Records)
Penn. Trial Court

Tirado filed a malpractice suit against the physician and hospital for the death of their newborn child.  During the deposition of the defendant physician Tirado learned of the existence of a document written by the physician within one week of the baby’s birth.  The physician refused to give a copy of the report to Tirado citing the peer protection statute.  The court sided with the plaintiff after a closed-door review of the document.  The court stated that the report was all from the hospital medical records and therefore not shielded.  The court also ruled that once a document is used to refresh one’s memory regarding an event it is no longer shielded from the other party.

The above two Pennsylvania cases were decided by a lower court and as such may still be appealed and are not considered precedent.

Becker v. Humana Health Plan (Termination and the ADA)
7^th Circuit

The plan had many reports about one physician smelling of alcohol while seeing patients.  The plan offered to continue the employment of the physician with monitoring and a recovery program.  The physician did not respond to the offer and was terminated.  The physician filed a suit against the plan for wrongful termination due to a violation of American with Disabilities Act (ADA).  The district court agreed with the plan since the physician was not a qualified individual with a disability since she posed a threat to patient safety.  The Circuit Court stated that the ADA allows for a policy prohibiting alcohol in the workplace and the plan did have such a plan in place. Think of this decision in relation to your hospital.  Does your hospital have such a policy?

Simmons v. Tuomey Regional Med. Center (Hospital liability for MD Acts)
South Carolina Supreme Court

The hospital contracted with a group of emergency physicians to be independent contractor emergency room physicians. The E.D. consent form also stated that the physicians were independent contractors as were all the physicians in the hospital.  A patient sued the hospital for medical negligence by an E.D. physician.  The lower court and the state Supreme Court ruled that the hospital had a non-delegable duty to its patients due to vicarious liability for its independent contractors.  This is especially true if the state has endorsed the concept of apparent agency (holding one self out so a reasonable person would believe the person is the hospital’s agent).  This duty would not extend to instances where physicians and patients agreed to meet in the hospital E.D. but only to those times where a patient presented to the hospital for treatment and receives treatment from a “physician who reasonably appears to be a hospital employee.”  Think about how your hospital advertises itself to the public and would a reasonable person possibly think the E.D. physician was a hospital employee.

In a similar case recently decided in Texas (Garrett v McCuistion Community Hospital) a court of appeals ruled that in a case against the hospital for a radiologist’s error, the hospital could not be held liable unless the hospital informs the patient that the physician is a hospital employee. Isn’t it interesting how two cases with the same basic issues are decided differently in different jurisdictions?

U.S. Court Allows Jury Decision Ordering Loss of Medical License in Criminal Case

In a case involving the criminal trial of a physician accused and convicted of significant unlawful distribution of controlled substances the jury sentenced the physician to 42 months in prison, a monetary fine and forfeiture of his medical license.  The legal question is whether a jury or only the State Medical Board has the ability to remove a professional’s license.   Several Circuits, including our 9^th, have stated that a federal court cannot revoke a state-issued license as part of a criminal proceeding.  This split of decisions allowed the case to go before the United States Supreme Court who refused to accept the case for hearing.  Therefore, the outcome currently depends upon which Circuit hears the case.

Harris v Novello (Loss of Medical License)
New York App. Court October 19, 2000 

A physician challenged the loss of license by the State Medical Board.  The Board found the physician made false statements on hospital applications.  The court did not agree with the physician’s allegation that he could not understand the documents because he had a learning disability.

Moran v Rush Prudential HMO (Independent Review)
U. S. Court of Appeal (7^th)

In Chicago the 7^th Circuit ruled that the state law requiring an HMO and the patient abide by and have disputes decided by independent physicians.  The outside medical consultant agreed with the patient, but the HMO refused to pay.  The patient paid the $95,000 and sued for reimbursement. The trial court ruled for the HMO but the 7^th Circuit Appeals Court stated that the ERISA laws do not preempt here and the HMO agreed to state insurance regulations and therefore had to abide by the HMO Act.  This is the first case to look at the interaction between state HMO rules, as is present in California, and federal ERISA rules.  This is currently the law in 38 states and is central to the congressional hearings on managed care. The question is whether one can force the HMO to abide by the arbiter’s decision.  The above decision is diametrically opposed to one in Texas by the 5^th Circuit, which ruled earlier this year that the HMO does not have to agree with an arbiter’s decision. The court based it’s ruling on ERISA preempting state law. The insurers in Texas have continued to voluntarily participate in the appeal process. The 7^th Circuit stated that ERISA does not preempt state law on this issue.

Steele v. Hamilton County Community Mental Health Board (Medication)
Ohio Supreme Court October 16,2000

The Supreme Court of Ohio ruled that antipsychotic medication may be force fed to an unwilling patient. The patient was involuntarily committed but was not a danger to himself or others.  The court ruled that the patient lacked the legal capacity to give or withhold an informed consent regarding the medication.  The medicine was necessary for the patient’s condition and there was no less intrusive effective means.

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.