August 1, 2005 Recent Legal News


Fraud and Abuse

Medical Records


Peer Review







Levitin v Brown
Ca. Ct. App.

The court overruled a trail court decision that gave a summary judgment decision to the physicians.  The issue was the statute of limitation and when it started to run.  The patient had a mammogram that showed an axillary mass.  The biopsy showed a malignancy of the breast had metastasized to the lymph nodes.  The patient had had multiple yearly mammograms in the past and the radiologist had missed the breast mass.  The court stated that the statute started not when the missed diagnosis occurred but when the patient found out about the malpractice.  The case was for fear of recurrence of the tumor what would be less if it had been found years earlier.

Faas v Heymann
NY trial court

Heymann had left a needle in a patient during a hernia repair.  He recognized it and called another surgeon into the OR to help locate and remove the needle.  The needle was never found and eventually lodged in the patients liver.  A judge found the physician negligent and a later trial will determine damages.  The hospital and the other surgeon were also sued and will be tried later.  The patient is claiming that whenever he feels a pain he wonder if the needle is killing him.  Sounds more like that attorney talking than the patient.

Powers v Thobani 
Fla. Ct. App.

The court of appeals reversed a dismissal of a claim against a pharmacist for filling prescriptions for a dangerous amount to narcotic, even though authorized by the physician.  The court stated there was a public policy of holding pharmacists holding a duty of care to their customers.  The patient was being treated for severe pain and died with the cause of combined drug overdose of Oxycodone and diazepam. This continued a split in the state court of appeals over this issue.

Cox v Paul
Indiana Supreme Court

The state Supreme Court found an oral surgeon liable for not telling a patient about the potential dangerous side effects of a Vitek implant of the TMJ.  After being warned by the manufacturer of the risks of the implant, Dr. Paul had his staff on two occasions search the records and tell all the patients with the implant about the potential problems.  Cox was not told.  She was found to have problems because of the implants at a later time and needed their removal.  The court found that strict liability did not apply but res ipsa loquitor did.  Paul could not explain why Cox was not notified and therefore was liable for damages.  The case now goes to trial as the original was a summary judgment motion.

Gilhuly v Dockery
Ga. Ct. App.

The court ruled that since the physician owed no duty to the children of a patient, they had no standing to issue for medical malpractice.  The patient was on prescribed medication and was involved in an auto accident.  One son was killed and the other child injured.  The case was failure of warning the patient not to drive.  

Brzozowski v Univ. Hosp. Health Sys.
Ohio Ct. App.

The hospital was sued for negligence and in discovery was asked to produce incident reports of the incident.  The rationale for the courts decision to allow production was the lack of adequate description of the incident in the medical record.  

Willington v Hudson
Ga. Ct. App.

The physician was sued by a patient after the physician came to the hospital voluntarily to care for any victims of a tornado.  The physician did not bill the patient.  The physician is protected form liability by the Good Samaritan law.  

Hinchman v Gillette
W. Va. Supreme Ct.

The Court stated that after the patient (patient's lawyer) screws up and fails to provide the proper pre suit notice they get a second bite at the apple.  They then are given a reasonable opportunity to correct any deficiencies in the notice prior to having the claim dismissed.  

Smith v Guidant
Trail Court

Smith has sued Guidant for defective heart defibrillator that did not work. They are attempting to turn this into a class action suit which makes alot of money for the attorney and less money for the injured party.  

CNA v Ca. Dept. Health
Trial Court

 After losing a court fight last month, the California Dept. of Health refiled this month the same regulation to delay implementation of the nurse ratio law that is raising the cost of healthcare and causing consternation between the hospitals and the nurses.  The CNA is back in court to again overturn the Department.  The judge is not a happy camper.  She has ordered the Governor and the heads of the health agencies to her court on August 17 to attend a contempt of court hearing for the continuation of attempting to override the law. The agencies state they reissued the regs to preserve their appeal of the judge's initial ruling.       

Patients v Northside Hospital
To Be Filed

OB patients at Northside Hospital in Atlanta have been notified that a nurse in the OB section has been diagnosed with TB.  They have been asked to get checked for the disease.  There were about 200 people exposed which include 37 babies.  The chance of exposure and getting the disease is very remote but "the fear of the disease" will have the trial lawyers salivating. 

Webb v Witt
NJ Super. Ct.

 The malpractice insurer settled a malpractice suit without the physician's consent and then reporting the settlement to the NPDB.  The court stated that according to the contract the insurer only had to consult with the physician before the settlement, not get the approval.  This is the reason all physicians never should sign a contract with an insurance company that allows this. 

US v John Minarcik, MD

I printed this in mid 2002.  On July 26, 2005, I received the reply at the end of the item

Dr. Minarcik, a pathologist in Skokie, Ill. has been arrested by the FBI one day after his former partner Dr. Leonard Walker was indicted in Fort Pierce, Florida.  The charge is that while the two were at Lawnwood Regional Medical Center in Florida, they did unnecessary and inappropriate testing of placental tissue.  This occurred 48 times.  The doctors examined the placental tissue long after birth instead of prior to birth when the exam was supposed to be done.  The tests were therefore medically unnecessary.  Neither former partners who have sued each other in the past over business issues are practicing medicine.

The following is the reply:

Hey A**hole

I just read your hilarious 2002 article which says that I was supposed
examine placentas BEFORE birth.

Can you please tell me how this is possible?

Why don't you use your f***ing mdjd head before shooting from the hip,

John Minarcik, MD

I agree. I made a typing error.  It did not get the FBI after me.  The language speaks volumes about the writer.


Calif. v Sanderfer
License Revocation

The Medical Board of California is attempting to revoke the license of Dr. Terry Sanderfer of Riverside.  He is being accused of delayed treatment or failure to act promptly in 11 gastric bypass surgeries.  There were six deaths in this group.  He has been sued over 20 times for problems related to gastric bypass at Corona Hospital, Riverside Hospital and Parkview Community Hospital.  So far 13 of his bypass patients have died.    

Tesillo v Emerg. Physicians Assoc.

There were enough controls by Emergency Physicians Association over the scheduling and other matters of the emergency department, that is was a matter of fact to be determined if one of the physicians was an employee of the corporation.  The contract stated the physician was an independent contractor but that may be rebutted.  

Foster v Traul
Idaho Supreme Ct.

A patient sued the hospital and anesthesiologists for med mal on informed consent.  On summary judgment, the hospital won since they had no obligation to give informed consent, the med mal the physicians won since there was no expert testimony.  The anesthesiologist lost on informed consent since the dumb lawyer didn't mention it in their motion for summary judgment.  How do you spell legal malpractice?    

Partin v North Miss Med. Ctr.
Miss Ct. App.

 The estate sued the physician after the physician left town on vacation and had told the patient another physician would take over.  The patient argued stupidly that the physician had a non-delegable duty to care for the patient and was therefore responsible for the on-call physician's negligence.  The presence of a non-delegable duty does not give rise to a claim of vicarious liability.  More court time wasted and fortunately only the attorney lost money.    Top

Fraud and Abuse

US v Simi Valley Hosp. Ca.

Simi valley Hospitals has agreed to pay the feds $3.6 million to settle an upcoding case against it.  They routinely billed for complex pneumonia when it wasn't.  They also signed a three year CIA with the feds.  This is part of a past whistle bower law suit.    

US v St. Joseph in Pontiac

St. Joseph Mercy-Oakland Hospital in Pontiac, Michigan, agreed to pay the feds $4 million after they voluntarily disclosed irregularities in their billing.  This was related to Stark and antikickback regs.  The hospital had entered into agreements with 14 different physician or physician groups for office management, lease, recruitment and income guarantees.  The agreements had all been either terminated or ended by their own terms by the time the hospital started the self-disclosure program.  The $4million is small for the amount that could have been extracted if St. Joseph hadn't self reported.  

US v Central Montgomery 

In the first case of its kind the feds settled a case against Central Montgomery Medical Center in Lansdale, PA for false claims.  The basis of the false claims was the use of restraints both physical and mental.  The hospital paid $200,000.  The feds in Pennsylvania have used the False Claims Act against nursing homes in the past but this is the first time against an acute care hospital.  A state survey showed that in 91 of 91 cases the hospital did not have adequate documentation to explain the restraints under Medicare rules. 

Massachusetts v CVS

CVS pharmacy has agreed to pay the state a fine of $1 million to settle the allegations that they billed Medicaid for prescriptions never picked up or for partially filled prescriptions. The pharmacy is supposed to  return payment to the state within 60 days if a prescription is not picked up.

Members v Rhode Island Blue Cross

In a class action suit the Rhode Island Blue Cross and Blue Shield agreed to pay $17.5 million to settle how they determined he copays on prescription drugs.  The patients paid full price copays but the Blues got the meds for a discount.  Each of the five named plaintiffs will get $25,000 and the masses will get an average of $95.     Top

Medical Records

Rakich v Paul Hasting

The plaintiff sued her opposing attorneys for disclosing her entire medical record when she sued for a workplace discrimination suit. It is a breach of privacy complaint. The law firm, of course, states they acted properly.  They, in fact, made an error of judgment.  Rakich's original suit against her former employer EMC is still ongoing but with different attorneys defending the company.  Rakich sued EMC for emotional distress and the company through their attorneys asked for all evidence related to her emotional state.  Rakich objected and the court upheld her objection.  Paul Hastings gave the court and all concerned all the records.   

Alcon v Spicer
Col. Supreme Ct.

The Colorado Supreme Court overturned a trial court judge's order for the plaintiff to turn over all her medical records in a PI injury case.  She only needs to turn over those records relevant to the injury claimed.  The high court also stated the plaintiff did not have to turn over 10 years of tax returns as the trial court ordered when she had already turned over her W-2 reports showing earned income.  The Court stated that the plaintiff should provide a log of all documents with claimed privilege and describe them in enough detail so the defendant and the trail court can assess privilege.  The trial court should then do an en camera review of the documents disputed.       Top


Preston v Meriter Hospital
Wisc. Supreme Ct.

In an interesting case, the Wisconsin Supreme Court states that newborns, born in an hospital, are covered by EMTALA and are entitled to a medical screening exam and stabilization.  The baby was born at 23 weeks and died three hours later.  The mother claims the baby was not afforded a medical screening exam and was just allowed to die.  The case now goes back to a lower court to determine whether the baby had a medical screening exam or not.        Top  

Peer Review

Izadifar v Loyola Univ.
ND Ill.

The physician was terminated after an altercation with a nurse.  She sued the hospital for the usual suspects and won the right to sue on discrimination and lost the other issues since the communications  were made during peer review hearings and therefore privileged.  This decision makes little sense to me.  I agree with the privilege issue for peer review as related to med mal but when the person involved is the plaintiff they should be allowed to have the peer review records. 

Lee v Trinity Lutheran Hosp.
8th Circ.

Lee, a physician on the staff of the hospital and treating HIV patients, used two drugs in combination that were not approved to be used together at that time.   The pharmacist reported Dr. lee to a committee and everything snow baled from there.  She had her privileges revoked and had two peer review committees along with an ad hoc committee.  The committee recommended she be re-instated but monitored.  She was permanently suspended and sued.  The 8th Circuit stated the hospital was immune from monetary damages under HCQIA since the hospital's belief was reasonable and bad faith motives of the peer reviewers was irrelevant.  The Court also refused to do a de novo review of the charts since it refused to substitute its judgment for that of the peer review.  It was also not important that the drug combination is now routine in the treatment of HIV patients as what is important is what the peer review committee believed at that time. 

Phelps v Phys. Ins. Co
Wisc. Supreme Ct.

 Following a problem with the delivery of twins, an OB wrote to the program director regarding the care by an unlicensed resident.  The letter was discoverable since the peer review committee had not met.  Message: Be careful what you volunteer.  It may cost you.     Top


Dalquist v Ohio State Med. Bd.
Ohio Ct. App.

Dr. Dalquist was accused of sub-standard care of 16 patients in her pain practice.  Following an administrative review, the hearing officer found against the physician on all counts.  The medical board agreed and terminated her license permanently.  She appealed and lost.  She claimed several procedural errors and the court stated they made no difference and stated that Dr. Dalquist's errors were so significant to uphold the permanent ban on her license.        Top


Howse v Atkinson
D. Kan.

The federal district court in Kansas ruled that a secretary who filed charges against an abusive patient could sue her employer for wrongful termination.  The abusive patient was the son of a Kansas state Senator and the University pressured Howse to drop her charges.  She continued to refuse and was then fired, a really dumb move by the University who deserves better counsel.           Top

Court v California
Dropped Case

 The judge in the case involving a potential contempt of court citation against the Governor and the Department of Health in California for their continued orders to get rid of the poorly decided nurse ratio timelineThe judge realized her mistake and her inability to bring contempt charges that would stick against the Governor and the organizations.  The repeated orders were to preserve the state's right of appeal against the judge's original order that the timeline holds.  The state in their comment chastised the judge on her original order.        Top


Bell v Blue Cross
Ca. Ct. App.

Bell, an emergency room physician, sued Blue Cross under California law for not paying reasonable fees for its patients to non-contracted physicians.  The trial court stated that the Department of Managed Health had exclusive regulatory authority to enforce and that Dr. Belll had no standing under California law H*S 1371 to sue.  The Court of Appeal did not agree.  They stated that Dr. Bell and the class can sue Blue Cross under quantum meruit and Blue Cross needs to reimburse reasonably.  There is current discussion as to what is meant by reasonable.  The court also stated there is an implied contract between the physician and Blue Cross so there can be no billing of the patient.  It is hard to understand that logic.  


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.