April 1, 2002 Legal

Information Release

Peer Review and Employment



Unfair Competition

Fraud and Abuse

California Fraud & Abuse

Doctor's Right to Speech

Doctor Sentenced to 63 Years

Doctor v Insurer



Information Release

Wiley v Dept. Vet. Affairs
ED Mich.

The court stated that a release signed when the patient signed up for his employment was sufficient for the VA to release his medical records to the employer in a legal contest between the patient and his employer.  The court placed strength in the reason the information was sought, to determine if the patient was truthful when he applied for the position.           

M.A.K. v Rush-Presbyterian Med Ctr.
Ill. Supreme Ct.

The patient signed a consent in 1994 when he applied for disability insurance for release of information. The release was broad giving permission to any health provider to release any information except the patient stated that the records may be protected by certain federal regulations, especially if they relate to drug or alcohol. Several months later he entered a alcohol treatment unit. After receiving the consent Rush released all records including alcohol records to the rehab unit.  The patient sued Rush and lost in trial court.  The Court of Appeal reversed and stated the authorization did not comply with federal regs.  The Supreme Court reversed the Appeals Court stating the generalization was ok and allowed the authorization to stand.  The issue of the pre-signing was declared to be a non-issue and there was a split on the federal rules about alcohol but bottom line, the patient lost.   Top

Peer Review and Employment

US Supreme Court

The high court ruled 5-4 that the Labor Department rule that employees must be told of their rights under the FMLA or be given  an additional 12 weeks of time off is punitive to the employers and disproportionate to the "crime". There is no longer any incentive to inform workers of their rights under the FMLA.

Sinoff v Ohio Permanente Med.
Ohio Ct. App.

Sinoff, an oncologist with a spotless record was placed on administrative leave after his first negative annual review.  Sinoff did not receive notice in an appropriate time frame regarding a hearing and after the hearing his privileges were revoked.  He then went through the usual procedures and lost them all.  He then sued because the initial decision was based on inadequate information and other reasons.  The trial court went with the medical group.  The Appeals Court reversed stating that the medical group was a HMO and had to comply with due process requirements.  The court also stated that HCQIA not not give rise to a private right of action for physicians subject to peer review.  It also agreed with the denial of the physician's request for injunction.  Basically, Sinoff won the battle and lost the war.

Aw v San Gabriel Valley Med Grp.
CA Ct. App.

A physician was hired as an independent contractor to work in an urgent care facility by the medical group.  Later, he was changed to an employee.  Due to continual bickering between Aw and another physician and downsizing they were both let go.  Aw sued for breach of contract and wrongful termination. The contract breach was for a 180 day termination under his initial independent contractor contract which was not changed in this regard when he became an employee.  The trial court ruled for the group on all counts.  The appeals court agreed with the trial court for wrongful termination since Aw showed nothing to base the claim on but reversed on the breach of contract. The court stated that since the new contract was an addendum to his original contract it was not supposed to supplant all the terms of the original contract.  The group wanted him to be an at-will employee.     

University Health Serv. v Long
GA Supreme Court

     The Georgia Supreme Court stated that the courts should defer to the medical judgments of hospital governing bodies in peer review cases.  The lower court had allowed the summarily suspended physician to return to work until the completion of the review process.  

Katz v Hosp. Author. of Rabun County
Ga. Ct. App.

An emergency room physician was terminated by the chief of staff.  The COS however, did not follow the bylaws and there was an issue of who was present when the MEC met.  The summary judgment request of the hospital was turned down and the case can proceed to trial. 

Hasan v Mercy American River Hospital
CA. Ct. App.

In an interesting case that affects all California Hospitals and medical staffs, the Court ruled that hospitals have qualified immunity for their recommendations to other hospitals regarding their licensed independent practitioners.  Dr. Hasan applied to Roseville Hospital and as part of the recommendation from American they included a memo regarding a telephone conversation between American and his residency program. After investigation, Hasan was turned down at Roseville for multiple reason, one of which was the memo about his residency.  He then sued Mercy for forwarding the memo.  The Court in a split decision upheld the lower courts decision for summary judgment for Mercy.  The Court relied on Section 43.8 of the California Civil Code.  This section allows immunity to anyone who provides information to a hospital about a medical practitioner.  The majority found that this immunity was qualified to be truthful.  The dissent stated that the immunity was total, even if there was a false statement.    

Richardson v Rush-Presbyterian
Ill. Dist. Ct.

Richardson, on the faculty of Rush, claimed he was fired for racial discrimination.  The problem was he could not prove anything and the court gave summary judgment to the school.  The doctor also lost a cross complaint by the school for $100,000 for withholding funds.  Sounds like a bad hair day. However, Rush is involved in a large number of suits recently for a variety of incidents.  Their attorney must love them.

Villalobos v Liorens
Dist. Puerto Rico

In another anesthesiologist versus anesthesiologist group case for antitrust, the physician lost again.  The court ruled that the physician's difficulty in getting referral is not important, only the relevant geographical market.  

Horn v The New York Times
NY App. Ct.

Horn had refused to divulge medical information of her patients to unauthorized personnel was fired.  She sued for wrongful termination and the court has ruled the case may proceed to trial even though she was at at-will employee.  The law makes an exception and protects people from employers who attempt to prevent the practice of ethical medicine.

Salaman v Our Lady of Victory Hosp.

Our Lady of Victory lost.  A female GI physician was being peer reviewed.  She requested other peer review records to substantiate her claim that she was being subjected to harsher peer review than her male colleagues.  She contended that the males had higher complication rates and mot subjected to peer review.  She gets the records.   Top


Waddell v Valley Forge Dental Assoc.
11th Circ.

Waddell, a dental assistant, was found a year after employment to be HIV positive.  He was taken off patient care and offered a clerical position at half his previous salary.  He sued under the ADA and the Rehabilitation Act. The lower court and the 11th both went with the employer.  It was decided that he was not a qualified person since a person who poses a significant risk of communication of an infectious disease to others in the workplace will not be otherwise qualified.  The court stated that an HIV infected dental hygienist poses a significant risk.        Top


Los Angeles Superior Ct.

In this famous unnamed case a anesthesiologist refused to give an uninsured or Medicaid patient an epidural anesthesia for delivery unless the patient paid $400 in cash upfront, no checks accepted.  She delivered a 10 pound baby and the child had a mild Erb's Palsy.  This case was against the hospital and OB.  The OB never requested an epidural and therefore the anesthesiologist was off the hook.  The OB claimed and the nurses also claim that the mother never requested an epidural.  The final settlement was $200,000.   

Schiavone v Victory Memorial Hosp.
NY App. Div.

In this case the issue decided was whether or not the hospital could be sued for an emergency room physician error.  The court said "yes" since the patient comes to the hospital for care and not to any specific physician.  Vicarious liability holds.     

Palladino v Piedmont Hospital
Ga. App. 

This case again looks at vicarious liability.  The concept is the employer is responsible for the actions of their employees if they are in the course of their employment.  Here, the employee was a nurse who inappropriately touch a patient's genitalia.  The court ruled that this may be within the ambit of the employment and should be heard by a jury.  Other courts have stated that something like this "may" be outside the employment and the hospital could not be liable. 

Dickerson v US
5th Circ

The 5th Circuit has ruled that the damage limit in any action under the Federal Tort Claim Act is limited to the amount asked for in the Administrative Claims.  In this case, the plaintiff asked for $20 million for a bad baby case.  The plaintiffs asked the district court to award damages since liability was not contested.  The court awarded $55 million.  The 5th said no.  All the money that can be awarded was what was asked for originally.  They reduced the damages to $20 million.  

Kruger v Jennings, MD
Mich. Ct. App.

In this unpublished opinion, one that can not be used for precedent, the Michigan Ct. of Appeals ruled that there was a duty of care between an on call thoracic surgeon and an emergency room patient that he never saw.  Jennings was called by the ED physician about the patient following a chest x-ray and wondering about a chest tube.  The thoracic surgeon gave an opinion but did not come in.  The patient died one half hour later from a ruptured aorta. This allows the case to go to trial but does not mean that there is any causation between the duty and the patient's death.    

Jaso v Gale

   In an interesting case that settled the day prior to court, Kaiser agreed to pay $3.1 million to a third party for poor treatment and inappropriate paperwork to the Department of Motor Vehicles (DMV) on their insured.  The Kaiser insured Destefano made a U-turn on a freeway and hit Jaso head on causing paralysis to one party.  Destefano was killed.  Destefano had been a patient at Kaiser for about twenty years and during that time had multiple seizures, diagnosed as psychiatric in origin.  She had been given multiple medications, including high doses of Vicodin and Morphine.  She was not treated for the underlying psychiatric condition.  She had been reported in the pst to the DMV for the seizures and had her license suspended.  The Kaiser physicians, in response to a patient request, filled out papers stating she could drive again.  In so doing they omitted a section which gave the false impression that the patient had not psychiatric illness.  The thing I now wonder about is if the Kaiser physicians will be reported to the State Medical Board and the NPDB.  I would hope so.         

Pedace v Kaiser Permanente

A patient with Crohn's Disease had seven years of occasional bowl obstruction and  an internal fistula. In 1995, after a bout of blood per rectum he underwent a colonoscopy that was normal except for the known fistula.  In 1996 he had another small bowel obstruction and rectal bleeding. He was found by a Kaiser gastroenterologist to have a "fleshy prostate".  The patient recovered from the small bowel obstruction and was discharged home.  There was no mention of the fleshy mass in the discharge summary.  For the next 2 1/2 years the patient had  no work up for the rectal bleeding or the fleshy mass.  Seven visits to the gastroenterologist never produced a rectal exam since the doctor did not believe that they were indicated in the absence of rectal signs or symptoms.  In 1998, he began having rectal pain and a rectal cancer was diagnosed.  Surgery showed a Dukes D lesion with invasion of the prostate gland and multiple lymph nodes.  He has since gone to a non-Kaiser facility for chemotherapy and is tumor free.  He at age 44 has lost all sexual function.  Kaiser obviously lost and even their own arbitor voted for liability.  The amount was $250,000 for non-economic damages, the maximum allowed, and $633,834 for present value of economic damages.  There are still contentions regarding costs, prejudgment interest and expert costs, and possible future wrongful death.  The gastroenterologist deserves a significant penalty for stupidity of not doing a yearly rectal exam on a patient over 40 years of age as recommended and especially one with GI disease.         

Happel v Wal-Mart
Ill. Supreme Ct.

The Illinois Supreme Court has ruled that pharmacists have a legal duty to patients to disclose potential dangers of the medications.  In this case the Court stated that Wal-Mart had a duty to warn the patient that she was allergic to the medication.  The patient went into shock and her attorney stated that this episode worsened her asthma and multiple sclerosis. The problem was that the patient was given Toradol in spite of warnings on their computer that this medicine may produce allergic reactions to those with allergies that Happel had.  The Court stated that if pharmacies collect information they have a duty to use it. 

Wakefield v Pfizer
Oklahoma Superior Ct.

A jury in Tulsa awarded $11.55 million for the death of a 41 year old salesman from liver disease potentially secondary to Rezulin.  He had taken the drug for only one month prior to the onset of the liver failure.  The award was broken down to $1.55 million in compensatory damages and and additional $10 million in punitive damages.  Pfizer will appeal both and it will be many years before any money will flow to the Wakefields.


The plaintiff is a male who went in for a facelift under general anesthesia.  The anesthesiologist due to the medications and not adequately hydrating the patient  allowed his blood pressure to fall.  The decrease in blood pressure lasted 40 minutes and the patient was left with good mental function but total inability to use any extremity. He communicates by eyelid blinks.  The plastic surgeon settled for $850,000, the anesthesiologist paid $1 million and assigned his bad faith suit against his insurance company for non-settlement to the plaintiff.  This will cost the carrier an additional $1.15 million.  The total award is $3 million.         

Bernstein v Martin Memorial 
Florida Settlement

Bernstein underwent cervical discectomy surgery to correct numbness in his left hand.  The surgery left him partially paralyzed and with chronic pain and incontinence.  During the malpractice trial the hospital, whose nurse did not follow the physician's orders, offered $3.2 million in a settlement.  This was accepted. 

Rice v  Three Pharmacists
Superior Court

 Rice, a preemie, was erroneous given an adult dose of Enalaprilat, a high blood pressure medicine.  This caused severe mental retardation, seizures and cerebral palsy.  Boston's Children's Hospital  was not sued, but their insurers aided in the defense. The reason the hospital was not sued was that under Massachusetts law, nonprofit institutions cannot be liable for more than $20,000 per case.  The jury awarded $7.1 million against the three pharmacists. I wonder who will pay the money?        Top

Unfair Competition

Gateway v Sagamore Health 
Indiana Superior Ct.

Gateway, a group of cardiologists in three states filed suit for an injunction against Sagamore Health Network and St. Francis Hospital for unfair competition.  Gateway had a contract with competitors of Sagamore and St. Francis and threatened to cut their discounts if employers contracted with Gateway.  The judge dismissed the preliminary injunction request stating that Gateway has virtually no chance of winning at trial.        Top

Fraud and Abuse


HCA has agreed to pay the government an additional $250 million for settlement of ongoing dispute over the companies billing practices.  This is over the prior $840 million in criminal fines, civil penalties and damages.  The charges that HCA inflated charges and paid illegal kickbacks to physicians are still outstanding.  Interesting is the after tax ramifications of this are only $10 million.        Top

California Fraud & Abuse

Ventura Superior Ct.

This is one of the first cases I have seen that uses the California Business and Professional Code 650.1 that prohibits referrals to physical therapy business that are partly or wholly owned by the referring physician without disclosure.  A 47 year old dentist with a diagnosis of thoracic outlet syndrome was referred by a physician to a physical therapist.  The plaintiff did not know and was not told of the financial relationship between the two entities.  The patient stated that while on the exercise equipment he sustained a disc herniation at L5-S1 that required surgery. The product manufacturer settled prior for $115,000.  After the complaint by the plaintiff was amended to add the B&P 650.1 violation, the defendant settled for $965,000.  Let this be a lesson to those California physicians with financial relationships to disclose them in writing to the patients.        Top

Doctor's Right to Speech

Springer v Henry
Del. Dist. Ct.

In a blow to those that believe a hospital can muzzle a physician from speaking out in matters of public policy by using the false term of disruptive physician, the Delaware federal district court said in denying a summary judgment request from the hospital, that the physician has a right to free speech if it has to do with public concern.  The Court stated that healthcare issues are of public concern when addressed by medical professionals. In this case Springer did not have his independent contract renewed in retaliation for public remarks contrary to the operation of the psychiatric center in which he worked.  The court ruled that his speech was not, as the hospital charged, disruptive.  Since it was not disruptive, Henry, the hospital person (Henry) was not entitled to any immunity, qualified or not. The case will now go to the jury for the wrongful termination action.   Top

Doctor Sentenced to 63 Years and other Penal News

Dr. James Graves of Florida was sentenced to 63 years in prison for manslaughter.  He was convicted for his part in four OxyContin overdose deaths.      

Meanwhile in California, a psychiatrist got his license pulled for five years for giving Ecstasy to two women in his house.  One was a patient and the other had a professional relationship with him.  

In Florida, the first people convicted in the HCA scandal have had their convictions overturned by a federal appeals court.  The court stated that there was not enough evidence to show the required knowingly and willfully falseness. 

Again, in Florida a Fort Lauderdale physician has pled guilty to income tax evasion. He failed to file returns for four years.  Why? On advice of counsel.  Under federal guidelines, he should be sentenced to twenty one months in federal prison.  He owes $179,000 on income of $800,000 over that time.

Florida continues to dominate this section.  In Port St. Lucie a physician was arrested and arraigned in the deaths of 12 patients due to drug intoxication or polydrug intoxication.  Dr. Asuncion Luyao was arrested at her office. At the same time the State has summarily suspended her license. Her records had been confiscated previously and reviewed by other physicians.  During that raid $63,000 in cash was found suggesting she took only cash and not insurance for these patients.

There will be no prosecution of the pharmacist in Connecticut who gave the wrong prescription to a woman and caused her death.  This does not mean there will not be a civil malpractice suit. Top

Doctor v Insurer

Medical Group v Blue Cross & Shield
Pierce County, Wash. Superior Ct.

Two medical groups have sued Premera Blue Cross and Regence BlueShield for bundling and downcoding.  The medical groups include 65 doctors and seven mid-level practitioners.  They are looking to increase this to a class action suit.  This is similar to the case in Florida which has just received the blessing of the Federal Appeals Court to proceed on most of the issues.  However, in the Florida case, Judge Moreno will allow the managed care organizations to appeal the decision allowing the patients to pursue a racketeering charge.  This will continue to delay the trial.      Top


US v McLaren Med Ctr.

A federal judge has stated that the deal between McLaren and five Orthopedic Surgeons was at fair market value.  This gutted the government and whistle-blower case for illegal self referrals.  Unless the government appeals the case is dead in the water.  This case involved the physicians who own a medical office building renting space to the hospital for $17 psf for five years.  The government stated that this was an illegal transaction as the price was too high and therefore the hospital could not bill the government for any services from these physicians.          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.