April 15, 2005 Recent Legal News




Peer Review


Patients v Forbes Regional Hospital
To Be Filed

Forbes Regional Hospital in Monroeville, Pennsylvania, has notified patients that the colonoscopy instruments used on 200 of them were not cleaned correctly.  these patients are at risk for hepatitis and HIV.  The tests are being done at the hospital for free.  Soon the suits will come in for emotional distress.  The incidents involved new scopes and the hospital did not consult the manual nor get training in the correct manner of sterilization.  

Patients v Moffitt Cancer Ctr.
To Be Filed

The H. Lee Moffitt Cancer Center in Tampa, Florida had a problem with their radiation equipment.  Seventy-seven patients received a large overdose of radiation since the machine was installed.  Twelve have since died but probably from cancer and not radiation.  The problem was following the installation, there was no repeat calibration of the machine which is supposed to be done.  The Center was fined $1000.  

Holland v Duke

Holland has filed a suit against Duke after they admitted they washed the surgical tools with elevator hydraulic fluid.  The plaintiff states he has infections since the surgery and has been unable to return to his job.  If the two are connected needs to be established.

Calderone v Kent Co. Hosp.

Was an ED physician an independent contractor or an apparent agent of the hospital.  In a med mal case the court ruled that in order for an apparent agency to hold up there must be acts by the hospital that would lead a reasonable person to believe the physician was an employee of the hospital, that the patient actually believed the physician was an employee and the patient relied to his detriment on the care provided by the physician.  Here the court said there was enough for a jury to believe an agency existed.  The patient went to the ED and not t any physician, the hospital did not require the physician to inform the patient they were independent and the physician did not tell that he was independent.  Also the physician relied on the ED staff to support the medical care. 

Fiske v US Health Corp.
Ohio App. Ct.

The patient sued the hospital after the on call physician refused to treat him because he was HIV positive.  The hospital said it was an intentional act and therefore they weren't liable.  The court said it was negligence and therefore they were under vicarious liability.

Enslan v Kennedy
CA Ct. App

Enslan sued Kennedy, DO for failure to recognize the severity of the problem and that it was beyond the competence of a chiropractor to treat the condition.  The patient had severe back pain, fever and a visible infection of the arm.  Enslan ended up with a stroke secondary to a Staph endocarditis which the back manipulations did not cure.  The patient sued the medical doctors and the chiropractors that treated him.  He used a medical doctor as his expert witness.  The lower court said that the physicians was not an expert in chiropractic.  The Court of  Appeal overturned stating the medical doctor could testify as to whether or not it was negligence not t realize and inform the patient that the condition was beyond the chiropractor's competence. 

Ferguson v Baptist Health
Alabama Supreme Ct.

The court found that there was wantonness in a malpractice action and deleted a punitive damage claim. The claim came from an error causing Dilantin toxicity.  

Calcagni v Wendel
Mass. Super. Ct.

The court stated that non employed physicians treating the deceased in a wrongful death action did not make the hospital vicariously liable.  The estate provided no evidence that the deceased could have reasonably believed the treating physicians were employees.  Summary judgment for the hospital.   Top


Whitaker v Houston County Hosp
Ga. App. Ct

The pathologist had a contract with the hospital.  He lost his contract and as per the contract he lost his privileges.  The contention is what privileges did he lose.  The pathologist had pathology, forensic radiology, blood transfusion and bone marrow aspiration privileges.  He states he only loses the pathology ones.  The hospital and the court said the contract says losing privileges with specifying, therefore lose them all.        Top


Parnell v Adventist Health
CA Supreme Ct.

Parnell was a passenger in a taxi that was rear ended.  He was treated at San Joaquin Hospital.  The hospital accepted as the PPO payment $1000 from Parnell and an additional $4000 from the PPO.  Parnell later accepted a $15,000 settlement from the taxi company and the hospital went after the entire amount to cover its "costs" for the treatment.  The court stated that the hospital can put a lien on the proceeds but only if the patient owes the hospital.  Here the hospital had been paid all they were entitled to by the patient and the PPO.  Several years ago the Court stated that hospitals were forbidden by federal law for charging above what Medicaid allows in those third party suits involving Medicaid recipients.  

Calif. Nurses Union v California
Cal. Ct. App

The California Court of Appeals upheld the lower court ruling that overturned the State's attempt at delaying the nursing staff ratio increase.  The court said that the Terminator acted illegally when he ordered a logical delay in the law.

MediCal Recipients v California
9th Circ.

Because of monetary concerns the LA County Rancho Los Amigos, the only place in the county to offer services to the disabled, was going to close.  The plaintiffs asked for and received a TRO enjoining the hospital from closing.  A full hearing was held and the court ruled for the plaintiffs giving them a preliminary injunction.  The Court of Appeals agreed, stating that the plaintiffs have a good chance of succeeding in the final action. There is no other place for these Medicaid recipients to be treated.  The court went to a balancing of the interests decision and found it would be harder on the patients than the County.      Top

Peer Review

Milelkowsky v Tenet
Ca. Ct. App.

The story is long and convoluted but in general Dr. Milelkowsky, an OB/GYN, was "inadvertently" not sent a reappointment application and then "voluntarily" dropped for not reapplying. The hospital would not accept his reappointment and he sued and won reinstatement.  Later he was summarily suspended after having to be escorted everywhere he went on campus by security.  It was claimed that he was a disruptive person.  He sued to retain his privileges and also for multiple other business related torts.  The hospital attempted on many occasions and thru several attorneys to get the doctor's cooperation in responding to discovery.  After multiple times before the court, the court finally gave Dr. Milelkowsky the death penalty.  They fined him and terminated his law suit.  The Court of Appeal upheld all due to the physician's recalcitrant attitude of a "busy practitioner".  The court did not buy this nor should it have.  The physician got what he deserved.    

Payman v Lee County Hosp.

Dr. Payman sued without an attorney the hospital over his termination from the medical staff.  He sued under RICO, a federal statute, and other items in state court. The hospital removed the case to federal court under RICO.  The doctor then dropped the RICO charge and attempted to have the case sent back to state court.  The fed court said that they would keep jurisdiction since the physician had sued various people 22 times in the recent past.  They will probably sanction the physician and then drop the case.   

Huntsman v Aultman Hosp
Ohio Ct. App.

The Ohio Ct. of Appeals reversed the lower court that stated the hospital had to list the documents in their peer review file relevant to a negligent credentialing case.  The Ct. of Appeals stated that the hospital was not permitted to identify nor disclose the documents.         

Webb v US
ND Ill.

In the reverse of the above case the district court forced the production of peer review documents in a wrongful death action.  The problem was that the US failed to produce any evidence that the requested documents had been generated for a peer review committee.          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.