April 1, 2016 Recent Legal News



Peer Review and Employment






Patients v St. Joseph Health

A class action suit against California St. Joseph Health for a 2012 data breach has been settled.  The hospital will pay $15 million, half to patients and half to the attorneys  and costs.  Each of the 31,000 patients who had their data compromised will be paid $242.  Those who can prove identity theft will be eligible for funds up to $2,000.  St, Joseph also spend over $17 million to upgrade its security systems and an additional $4.5 million on credit reporting for patients.

Patients v Wal-Mart
To Be Filed

Wal-Mart screwed up and placed the prescription history and other information on several thousand people on line.  This was an internal problem and not a hack.  They are offering credit protection to the affected people.

Millennium Laboratories v Allied World Assurance 
Ca District Ct

In a blow for sanity the insurer was found not liable for the costs that the lab company incurred when they were investigated by the feds for HIPAA misconduct.  Let us hope insurance companies do not cover any HIPAA violations and the hospitals are the ones at risk.  Maybe then they will wake up and actually do some security for their EHR.         Top


Frost v Parkview Hospital
Indiana Ct App

In an interesting case that is sure to frighten hospitals, the court ruled the plaintiff is allowed to discover insured patient discounts.  He was taken to the hospital after an injury without health insurance.  He was hit with a $629,386 lien later changed to $625,117.  He filed an action to quash or reduced the claim and disputed the amount charged.  Parkview moved to show its chargemaster rates were reasonable as a matter of law and the trial court denied the  motion.  The appellate court agreed with the trial court.

HCA v Molina Healthcare of Florida

Nine Florida hospitals have sued Molina for violating a state law that requires Molina to reimburse out of network providers for emergency care given to their members.  Over 3000 Molina members have sought and received care at the hospitals with the hospitals receiving $13.6 million of the over $102 million billed.  Under Florida law they are required to pay the lesser of either the provider charges, a typical area provider chare or a rate agreed upon.  Molina apparently did none of the above.        Top

Peer Review and Employment

Jansson v Stamford Hospital

Anesthesiologist Samantha Jansson is suing the hospital for firing her for what she says is complaining about inexperienced anesthesiologists being hired for the cardiac program.  She also states that she had a number of run-ins with one doctor who treated female employees with the utmost disrespect.  She says that soon after complaining about the new hires se was told by an attorney for the hospital that she had complaints about not being engaged with patients, that she talked too loud and did not sit next to the patient heads.  She states she explained she was hard of hearing and the OR noise made her feel like she needed to raise her voice.  She also says she was sitting behind a lead shield to reduce radiation exposure.  She was eventually told, she says, because the business model for caring for cardiac patients was changing and she did not have the experience to stay at the hospital.

Murfin v St. Mary's Hospital
Ill App Ct

Dr. Mark Murfin had his privileges revoked by the hospital after two problems with nurses at the hospital.  The MEC voted to have him go for counseling but the Board decided to revoke the privileges of Dr. Murfin.  He went through the peer review process per the bylaws and they agreed with the Board.  During the time of the hospital hearings Murfin instituted court procedures seeking injunctive relief and damages.  The trial court agreed with Murfin on the injunctive relief but agreed with the hospital on damages.  The appellate court overruled the trial court and ruled against Murfin on all counts.

 Ritchie v Community Howard Regional Health
Indiana Ct App

Dr. Michael Ritchie had his interventional cardiologist privileges suspended and he sued for the usual breaches.  The reason for the action was the takeover of the hospital by Cleveland Clinic and the requirement that all be a part of the bigger picture.  Following that the MEC stopped three procedures at the hospital which were done almost exclusively by Ritchie.  He was accepted on the staff and soon after found he was being investigated and was then suspended.  He sued and did win an injunction for the hospital reporting him to the various agencies.  This was later overturned for failure to exhaust administrative remedies and he appealed.  He lost. 

Liu v Cook County
7th Circuit

Dr. Katerine Liu, a general surgeon at Stroger Hospital (formerly Cook county Hospital) lost her privileges due to multiple run ins with the other surgeons and the administration for refusing to operate on appendicitis patients.  She also illegally accessed medical records.  She sued for the usual discrimination and of course lost on all accounts.  Hopefully both she and her  attorney lost money but I fear the only one that lost money was Liu.

Nanas v Shore Medical Center
D New Jersey

The court gave a temporary reprieve to the doctor by denying a motion to dismiss and saying the physician had pled sufficiently that the hospital acted out of malice to overcome the HCQIA presumption.  But, the court the court allowed the hospital to later file another motion on the HCQIA issue based on a 10 year disputes with the physician and also allowed the physician to later file an anti discrimination violation.  This will not turn out will for the physician.

Starling v Banner Health

Dr. Mark Starling, the former CMO of the Banner Heart Hospital, was fired for poor performance.  He states the hospital wanted him gone due to his age.  He claims they illegally tested him for alcohol at an after hours holiday party.  That to me sounds like Banner.

Reid v KentuckyOne Health
Ky Ct App

In 2013 Dr. Benjamin Reid had his privileges at Jewish Hospital& St. Mary's Healthcare terminated unless he worked with another supervising physician.  This was reversed and he got his privileges back.  He did not exercise any of the returned privileges for the six months of reappointment.  His membership expired.  Reid sued.  The trial court said the hospital conduct was professional review activities not action.  This meant the HCQIA immunities were not given to the hospital.  Of course, the decision was reversed and indeed the immunity was allowed.

Fabian v Hospital of Central Conn.
D Conn

Dr. Fabian is a transgender woman not hired by the hospital and of course sued.  She won in court as the court made up facts.  The hospital  rightfully claimed she was not an employee but the court ruled that the hospital had not shown she was not an employee.  She had never been hired.  The court said also that title VII applies to transgender. She won this round.        

Offar v Mercy Medical Ctr.

The black female physician was terminated from the hospital for unprofessional conduct and of course sued for the usual stuff.  She, of course, lost sine the physician did not provide sufficient facts from which a jury could say her dismissal was from discrimination.   

Kirchmeyer v Phillips
Ca Ct App

 Dr. Phillips was being investigated by the California Medical Board for having sex with a psychiatric patient.  The Board was led by Kirchmeyer. The Board subpoenaed the medical records of the physician on the patient involved.  Both the physician and the patient refused permission for the Board to see the record.  The trial court did a in camera inspection and denied the Board access to the medical record.  The Board appealed and the appellate court ruled the Board could find information in other places and the record was unlikely to tell of the possible involvement.  The court also said that since the Board put the material at issue the "in issue" exception does not apply.         Top


Craven v Yale- New Haven

A 60 y/o female went to the hospital for a rib biopsy.  Pre-op she had her skin marked and had the rib marked with metallic coils.  Following the resection which did not include a post-op x-ray to make sure the correct rib had been removed, she was told that not enough rib was removed and taken right back to surgery.  In fact they had removed the seventh rib instead of her eighth.  The suit was reviewed by another cardiothoracic surgeon for the plaintiff and he was appalled at the botch.  

re: DePuy Orthopaedics

In a suit in Dallas five plaintiffs won $142 million in actual damages and another $360 million in punitive.  The conclusion was that they knew the artificial hip device was faulty and failed to warn patients.  This is the second trial on this product.  J&J won the first with the defense that the surgeon put it in wrong.    There are about 8000 suits to come. 

32 Women v Bayer AG

Bayer manufactures Essure a birth control device implanted into the fallopian tubes.  The women and the attorney states they had serious and permanent injuries due to the device.  

Patients v Hospitals

Three hospitals have been sued for failing to protect patients from the now notorious Rocky Allen.  Mr. Allen is the person who raided Fentanyl and potentially gave patients diseases.  Banner Thunderbird Medical Center and HonorHealth John C Lincoln in Arizona and Northwest Hospital Medical Center in Washington are the ones being sued.  To date over 5000 patients have had to be tested for HIV hepatitis B and C.  No patient has had a confirmed infection.

Patients v Raleigh Heart Clinic, West Virginia
To Be Filed

There have been at least 12 hepatitis B and C cases linked to the injectable meds given during stress tests at the clinic.  It seems the clinic is using single use vials for more than one patient.

Montgomery v Penumbra

Dennis Montgomery went to Overlake hospital inn Bellevue, Washington for treatment for a brain aneurysm.  He had a Penumbra coil inserted but the entire coil could not be inserted and about 10% was left in the cerebral artery.  The coil detached prematurely and could not be removed.  The FDA had issued a recall of the coil two years prior to the use in this patient and had re-given clearance to use the coil one year prior to the use in this patient.  It is unknown if this coil used was one subject to the recall.  

Gomez v Wellington Regional Medical Center

Linda Gomez sued the Florida hospital for flushing her fetus down the toilet.  She delivered the fetus in a bathroom in the ER and cut the umbilical cord herself.  A worker entered the bathroom after hearing her scream and flushed the toilet.  The hospital refused , according to the plaintiff, to help retrieve the fetus for a Christian burial.

Patient v Maine Medical Center
To Be Filed

A yet unnamed patient was either pushed or fell to his death from the sixth floor of the hospital.  The police are investigating. 

 Fenimore v Regents of California
Ca Ct App

The patient had Alzheimer's Disease and was hospitalized at UCLA.  Within hours the patient fell and broke his hip.  The hospital did not tell the family for our days and the patient died while recovering from hip surgery.  The family sued and overcame the demur by the hospital for elder abuse as not only did the hospital commit negligence but willfully had a pattern of understaffing at the facility and was therefore reckless.        Top


Anthem v Express Scripts

Anthem believes Express is charging too much for drugs.  They want to recoup $15 Billion for the years December , 2015 to 2020 plus and additional $150 million for operational  breaches.  The contra t Anthem has with Express contain a provision for a periodic review of pricing to make sure the prices are competitive.  Anthem believes that current pricing is now over $13 Billion.          Top


California v A Better Tomorrow

A DA out for personal reputation enhancement filed murder charges against the drug and rehab facility.  The judge threw out the murder charge but stated they could continue with the dependent adult abuse charges against the unit and four of the employees.  The case is about a patient who came to California from Arizona to be treated for alcohol addiction.  The day after entering the rehab unit he was found dead.  He had severe COPD and was on oxygen.  He was given Serax which may have depressed breathing.  The coroner said he died of natural causes and did not believe the Serax was contributory.

New York v Newman

Dr. David Newman was arraigned for one count of first degree sexual abuse and four counts of third degree sexual abuse.  He is accused of touching female breasts in the ED for no medical reason and in one case drugging and masturbating on a patient.  He has been fired from the hospital.

US v Harris
To Be Filed

Brad Harris of the Dallas Novus Health Services is being looked at by the FBI for possibly ordering the hospice nurses to increase drug doses to make patients die faster.  this would be for profit.           Top 


US v Ganji

A jury convicted Dr. Pramela Ganji and Elaine Davis of New Orleans for fraud.  They billed for home health services not needed or not provided.

Tenet Healthcare v Blue Cross
Ca Ct App

Tenet sued after Blue Cross refused to pay for $2 million in services for one patient severely injured in an auto accident.  Anthem denied coverage since the patient was driving with an over the limit BA even after authorizing services.  The trial court ruled for Anthem but the court of appeals overturned since Anthem specifically authorized the services and therefore there may be fraud.  Sounds like Anthem may want to pay the full bill quickly.

US v Aveo Pharmaceuticals

The SEC has charged the company and three former execs with fraud.  They say they misled investors about the winning of approval for Tivozanib.  Aveo agreed to pay $4 million to settle but the execs cases are still pending.  

US v Novartis AG

The feds are going after the company for wining and dining physicians at detail meetings but almost never discussing their drugs.  A whistleblower suit has been filed and the feds have intervened.  They believe the company defrauded the government out of hundreds of millions of dollars by inducing physicians to prescribe its meds via sham speaker events.  The feds now want the records on 80,000 of these meetings, who was present, what was said, what educational material was given etc.  

US v Cedars Sinai

The hospital has agreed to pay the feds $873,000 to resolve non compliant billings of one thoracic surgeon.  The hospital after doing its own investigation self reported the error that the surgeon billed for services not performed and over billed. This is a problem for hospitals that employ physicians. 

Luis v US
US Supreme Court

In a major victory for defendants accused of fraud Luis won a victory against the feds for being allowed to utilize her legally obtained funds to hire the attorney of her choice.  She was accused of health fraud and has been under house arrest while the issue was being litigated.   

Medical Ctr. at Elizabeth Place v Atrium Health System
6th Circuit

 The district court ruled the system was a single entity and therefore could not conspire for antitrust.  The 6th Circuit overruled the district court and stated the system had a joint operating agreement and were therefore separate.  The court also found the Center plead enough that the hospitals colluded to keep it out of the local market.  There were e-mails , letters and direct statements.  The case was remanded.   

US v Endo Pharmaceuticals

The FTC states that Endo and Allergen conspired to delay Allergen from entering the local anesthesia market.  They say that Endo paid Allergen to keep it out of the market.  This suit continues and upgrades the pay for delay that the FTC has been going after.         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.