April 1, 2008 Recent Legal News









Castaneda v US

Mister Castaneda, an illegal immigrant, was arrested for possession with intent to distribute.  While in custody, he complained of penile aid and a mass on his penis that was growing.  He was ignored for about a year.  He was finally released from custody, went to a hospital and had the needed biopsy.  The result was a penile carcinoma.  He died at the age of 36 from metastatic  carcinoma of the penis.  His family has sued and a federal judge has allowed the suit to go forward stating "this was beyond cruel and unusual punishment."  The government may appeal. 

Patients v US  
To Be Filed

There will be multiple suits filed against the Feds due to a nurse anesthetist who deliberately gave hepatitis C to patients.  Jon Jones took Fentanyl and self injected some and then used the same syringe and needle to inject pre op patients. This should cost many millions of dollars from the government and the two private firms that employed Jones under contract to the government.

Patient v Methodist Hospital
To Be Filed

In an unusual move the Methodist Hospital in the Minneapolis area sent an announcement to its staff stating that the wrong kidney had been removed from a patient.  The error occurred prior to the surgery when the kidney with the cancer was misidentified on the chart and that kidney was removed.  The patient still has the cancerous kidney.  The surgeon has "voluntarily" stopped seeing patients until the investigation is finished.  The patient has not decided what course of therapy to pursue.  

Pace v Swerdow
10th Circ

 Dr. Swerdow was the expert witness for Pace in a med mal trial.  The doctor originally in a affidavit testified that the original defendants very likely caused the harm.  He subsequently changed his testimony in another deposition to state that after he reviewed more items he did not believe the defendants broke the standard of care.  The original defendants then went for and were granted summary judgment which was not opposed by Pace.  Pace then sued Swerdow for fraud.  The district court in this diversity opinion stated that the claims should be dismissed.  The 10th Circ disagreed and remanded it back to the district court to determine if there was such a thing as expert immunity or if each of the claims failed on independent grounds.    Top



CVS Caremark has agreed to a $37 million settlement to get out of a case where the government alleged the company pushed Medicaid patients to a higher reimbursed medication than what could have been given.  This is a whistleblower case by a pharmacist who will receive $4.3 million.  What they did was switch from tablets to capsules which was reimbursed at a higher level, about $63 more per 60 pill prescription.        Top


Pharmacists v Illinois
Illinois Supreme Ct.

Pharmacists of the state are asking the Supreme Court to reconsider a prior ruling that forced them to give out emergency contraception even if it went against their religious beliefs.  The state argues that the pharmacists have no standing since there have been no repercussions.  

While this is going on, Florida House has discussed a similar bill for their state. 

Not to be left out, the Wisconsin Court of Appeal stated that the Pharmacy Board did not overstep its grounds on a penalty against a pharmacist who refused to dispense BC pills to a coed and also refused to tell her where to get the prescription filled.

See also Recent Legislation this edition.     Top


Heartland Spine & Specialty Hosp v Hosp

The physician owned Heartland Hospital sued the community hospitals in the Overland, Kansas, area as well as the insurers for antitrust violations.  The physician hospital first won a year ago from UnitedHealth the right to see their patients. Now the hospital has settled with all the community hospitals they sued along with the insurers so that they can now see all the patients that the community hospitals see.  The settlement happened days before the April 1 scheduled trial in federal court on the issue.  Those that have settled are HCA Midwest Health System, St. Luke's Health System, Shawnee Mission Medical Center, Coventry Health Care of Kansas, Aetna, North Kansas City Hospital, Blue Cross and Blue Shield of Kansas City, UnitedHealth, Humana Health and Cigna. The community hospitals had pressured the managed care organizations into signing network configuration agreements calling for rate bumps if an insurer let a physician hospital into their system.  The hospitals also spoke among themselves and their insurer partners to prevent Heartland from coming into the networks.  The physician hospitals can use this case and the October, 2007 ruling by the federal judge to deny a summary judgment by the defendants against other insurers and community hospitals.   

Texas Orthopedic Assn v State Bd Podiatry
Texas App Ct

Although not couched in antitrust terms there are antitrust overtones.  The State Board of Podiatry made an error in wording and got slapped by the court.  The podiatry board stated that "foot"  included the ankle and parts of the body that are well above the ankle.  This was too broad and so was struck down by the court.      Top 


Patients v BJC Healthcare

 The patients sued the hospital for illegally charging more for uninsured patients than insured patients.  The hospital in St. Louis settled agreeing to give a 25% discount to all hospital patients without insurance including some past patients if treated after 1/1/99. If the patient pays within 30 days they will receive an additional 5% discount. Those who fall within the 400% of the federal poverty level will continue to get discounts but they will be better publicized.  This will last until at least 2012.  This case received a class action status.  The settlement only covers those with physician determined elective procedures.  

Little Rock Clinic v Baptist Health
Ark Superior Ct.

After several years the trial is finally going to start.  The AMA and Arkansas Medical Society have intervened as additional plaintiffs and have financed part of the case.  The case is about Baptist tossing six cardiologists off the staff for having an interest in a competing cardiac hospital.  The cardiologist state the economic credentialing of the Baptist organization is over broad and interferes with the patient physician relationship.  The AMA believes, as should all, that the credentialing decisions should be based on quality and not economics unrelated to patient care.       Top 


California v Roozrokh

Dr. Hootan Roozrokh is the first transplant surgeon in the country to be ordered to stand trial for hastening the death of a potential transplant donor.  He was a Kaiser physician working for the Transplant Donor Network.  The hospital had never done a donor transplant before and had the mother authorize the donation that could not be done since the patient was not yet brain dead.  All the people in the OR were new to the procedure including the physician who had only done one in his training. The attending physician showed up late and did not know her role in the procedure.  She was granted immunity for her testimony.  The judge stated that it was a system failure with no one knowing who was supposed to do what.  Let's hope the jury sees it the same way and a physician's career is not impeded.        Top


Central Indiana Podiatry v Krueger
Indiana Supreme Court

The podiatrist was employed and signed an agreement that banned for two years practicing in any county that the group practiced.  The group practiced in 42 counties.  The podiatrist opened an office in one of the counties and sent letters to his old patients of his new office.  He was sued.  The trial court stated that the contract was unreasonable in scope.  The appeals court agreed.  The Supreme Court stated that the contract was a valid contract but in this case unreasonable in scope.  The court stated that the legislature must decide if the idea of a restrictive covenant in medicine is legal or not.      

Derby v Commissioner (IRS)
US Tax Court

Twelve physicians attemped to deduct good will from the sale of their practices to Sutter Health.  The court stated that the agreement was binding and the physicians could not deduct good will over the actual acquisition price or their practices.  

U. Virginia Health Services Found. v Morris
Virginia Supreme Court

The Foundation is not a charitable organization since it operated as a for profit organization.  Only organizations that actually operate as a charitable organization can have charitable immunity from med mal in the state.    

Aldridge v Brodman
NY App Ct.

 The hearing of a committee of the medical staff were admissible in court.  The group of surgeons refused to sign a contract with the hospital and were terminated.  They requested and received a hearing and then sued the hospital stating the contract was unlawful, unethical and against public policy.  The surgeons wanted the minutes of the medical staff hearing and the hospital as usual refused.  The court overruled the hospital since there were no quality issues involved the meeting was not protected under state law. 

Patel v Verde Valley Med Ctr
D Ariz

 The hospital sued the physician for defamation after the physician stated publicly that the hospital attempted to stifle competition, engaged in economic credentialing and made efforts to block entry into the market.  The court gave summary judgment to the physician since truth is a defense to defamation. The hospital could not prove their case.   

Chang v UC Davis

 Dr. Dongwoo Chang, a UC Davis neurosurgeon, is being terminated for "quality concerns".  He is suing to stop the termination until the hearings are complete.  He accuses UC Davis of attempting to stop his whistleblowing on the chief of neurosurgery, Dr. Jan Muizelaar.  He has accused Dr. Muizelaar of being sued multiple times (one arbitration decision against him for $250,000, in California accusations are not posted on line, only adverse decisions), having the highest mortality rate and  practicing below he standard of care along with the worst of all charges practicing medicine without a license.  Dr. Muizelaar is said to have only a limited California license which only allows him to practice at the University.  He also is practicing at the Sacramento Mercy hospitals.  The University, Dr. Chang contends, knows about the illegal activity and looks the other way due to the money received from his work.  I understand and have seen hospital systems do this type of legal slander in the past.  When I looked Dr. Muizelaar up on line he was listed as having a Special Faculty Permit which only allows him to practice at the medical school and its formally affiliated hospitals. There is some kind of arrangement between Mercy hospitals and UCD but I am not sure it is a formally affiliated hospital, whatever that means. What I have seen in the past is there is some truth on both sides of the equation.  The Court denied the injunction as not ripe for decision as yet.       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.