August 15, 2011 Recent Legal News







Peer Review and Employment


Bennett v St. Vincents
Florida Supreme Court

The plaintiff was born at St. Vincent's Hospital in Jacksonville, Florida, after the mother was in an auto accident.  The baby required resuscitation at birth but recovered.  She had problems after and became unresponsive about a week post partum.  The parents used the OB for giving too much fluids and not testing for electrolyte imbalance.  Florida has a Birth Related Neurological Injury Compensation (NICA) plan that pays for injury during labor, delivery or resuscitation in the immediate post-delivery period.  the hospital claimed this case fell into that jurisdiction.  The parents said this happened after the post-partum period so they should be allowed to sue.  The ALJ ruled that the parents could sue and the appeals court ruled they could not.  The Supreme Court ruled that they could sue.  The plaintiff is only going to get smaller amounts via the NICA than if they could sue for full damages.    

Gillett v Robinson

In a case that could never happen in the US a patient age 22 is suing her mother's OB for not delivering her via C-Section.  Because of the vaginal birth with forceps the child was born with Erb's palsy.  The mother had requested a C-Section due to the size of the fetus but had been refused by the OB. 

Patients v Carlisle Regional Med Ctr
To Be Filed

 The Pennsylvania Department of Health has ruled that several deaths at the hospital may have been due to understaffing by the hospital.  Many unnamed employees had complained to the state about the staffing at the hospital.  A emergency room manager was fired after complaining several times about the understaffing.  The CEO stated that they take the report seriously and they have recently hired more nurses.  He denies that understaffing had anything to do with the deaths.  Who would you believe?  

Brink v Muller
NY App Div

An independent practitioner ED physician called a neurologist at a different hospital for an opinion on a patient.  The patient did well initially and then had a severe stroke.  The physician did this on her own.  The hospital was included in the suit and the court ruled that the hospital can be sued under vicarious liability and it is up to the jury to decide the facts.          Top



WellPoint was sued a year ago in a class action for allowing information on 600,000 people on their website to be identified and information obtained.  In the settlement WellPoint agreed to a two year monitoring as well as any identity theft reimbursed up to $50,000 and filing allowed until 2016.  They will also pay a total of $250,000 to two non profits whose efforts are directed to protection internet privacy.  A court will look at the settlement for fairness in November.  

A physician at Brigham and Women's hospital in the People's Republic has reported a stolen external hard drive.  The information about the medical conditions of 638 patients but not financial information was on a physician's external hard drive while he or she was in Mexico.  I don't understand why the information was allowed on the physician's computer to begin with.  This would never have occurred prior to the advent of electronic medical records.    

Health Net had a breech of confidentiality earlier this year and said not financial information was involved.  Now they are backtracking and say that social security numbers were also missing.          Top


ACLU v Myriad Genetics
2nd Circ

Myriad Genetics owns the patent on BRCA 1 and 2.  The ACLU said that genes can not be patented but the court said these are not true genes but these are markedly different than the genes inside the body.  Therefore these isolated DNA are not a product of nature an can be patented.  This will probably go to the Supreme Court.        Top


US v 26 Providers

Twelve pharmacists, four physicians, an accountant and a psychotherapist plus patient recruiters were all indicted for fraud.  They were all from Michigan and were accused of diversion of prescription meds and fraudulent billing.   

US v Fernandez

Mr. Fernandez of Miami pled guilty of Medicare fraud.  He was diverting patients to some sleep clinics in the area for money.

US v Washington

Dr. Gwendolyn Washington of Michigan pled guilty of healthcare fraud for performing multiple unnecessary tests on patients and billing Medicare for them.  She also referred patients to home health agencies for a $200 per patient kickback.  She also gave false prescriptions to another (co-defendant) who had them filled at various pharmacies so they could be sold on the street.   

US v St. Francis Hospital

St. Francis Hospital of Connecticut settled a case for $516,500 for overbilling Medicare for Lupron.  The med can be given to either males or females but it is reimbursed differently depending on why it was being given due to different dosages.  The hospital routinely billed the higher reimbursement no matter why it was given.  They said it was unintentional but did not notify the feds of the overpayments as required by law. 

US v Iruke

Pastor Christopher Iruke shredded a lot of paper until the shredder overheated.  He then attempted to flush incriminating evidence down the toilet.  None of it worked as he was found guilty of health care fraud for ordering $6000 wheelchairs for people who did not need them.  He said he did not know about the fraud.  His actions went against him as did the testimony of the manager of the clinic.

US v Peninsula Regional Med Ctr

The eastern New Jersey hospital has settled the fraud accusations for billing for unnecessary coronary stents done by a cardiologist and not preventing him from doing the stents.  the hospital admitted no liability when it settled but all know they were.  They agreed to pay $2.8 million plus reimbursements for all the physicians improper stents.

US v Blue Cross
6th Circuit

Blue Cross of Michigan has appealed to get the case against it for antitrust dismissed.  The feds and the state accused the insurer of using hospital contracts to stifle competition and drive up medical costs.  The federal judge allowed the case to go forward thus the appeal.  The government stated that Blue Cross contracts prevented hospital from charging lower prices to other insurers and they would pay them more if they charged other insurers higher prices.           Top


States v US
11th Circ

In the Florida case where many states sued the feds over the personal health insurance mandate and won, the 11th Circuit agreed the mandate was unconstitutional by a 2-1 vote.  Interesting is that one of the votes for the plurality was by a judge appointed by Clinton.  The justices did not agree that if the one aspect was unconstitutional the entire Obamacare was unconstitutional. As this decision is opposite the prior decision of an appellate court, it sets up the case for the Supreme Court to hear in the near future.

New Jersey Physicians, Inc. v US
3rd Circ

The US Court of Appeals in Philadelphia has ruled that the suit by the physician group and patient Doe can not go forward because it failed to state an injury.  This is the same case that was dismissed late last year for the same reason.  It is a case attempting to overturn Obamacare as unconstitutional since the individual mandate has been ruled invalid by one Circuit court.    

Physicians v CMS

 Six Georgia physicians have filed suit against CMS and DHS for violating federal law in continuing to utilize the AMA Specialty Society Relative Value Scale for payments.  This has been in effect since 1981 where 26 physicians come together to evaluate and vote of the values of medical procedures.  CMS then must agree and approves about 94% of the recommendations.  The physicians suing are primary care physicians who believe they are getting the low reimbursement and the specialists the high end.  

Douglas v Independent Living of Southern California
US Supreme Court

The high court has agreed to hear the case where the liberal 9th Circuit has stated that Medicaid beneficiaries can sue to prevent payment cuts.  The law does not explicitly allow the suits but the 9th said they can sue.  The State appealed the case to the Supremes.  Obama filed an amicus brief in favor of the state.  The Liberal Democrats in Congress and past high Democrats have filed an amicus brief in favor the the ruling.        Top


Anghel v Daines
NY App Div.

Dr. Maria-Lucia Anghel, anesthesiologist and pain management, was charges with 25 counts of professional misconduct with seven patients.  Her license was revoked and she sued for lack of due process.  She was required by federal law to obtain a CLIA permit prior to opening a lab.  She did not obtain the permit and opened a lab.  The Department found her acts willful and she ordered unnecessary tests and treatment.  She was found to be "intentionally deceitful".  She also destroyed her current patients medical records.     

Rivera v Kalafut
5th Circ

Dr. Rudolfo Rivera of Texas had a complaint filed against him by a patient to the Texas Medical Board.  After an investigation the Board found he was not capable of practicing medicine and revoked his license.  Dr. Rivera sued the board and private physicians.  The court dismissed the charges as did the 5th Circuit.  The private physicians were not state actors and therefore had no input into the hearing.  The others sued had qualified immunity.          Top

Peer Review and Employment

Welchlin v Fairmont Med Ctr.
Minn Ct. App.

Dr. Wechlin had his privileges suspended for one year due to disruptive conduct.  He sued and lost.  He claimed breach of contract as the hospital did not follow their bylaws.  The court agreed that the bylaws were a contract but they were followed.  Also, the physician admitted his conduct was disruptive.  After all these findings the court also found that HCQIA gave immunity to the hospital as they followed the four prongs.

Armstead v Diederich
Mich Ct. app

The hospital terminated the physician after several med mal cases and that the physician did not carry med mal insurance.  The physician attempted to get the records of the hospital committees and the court said they were privileged.  After that they upheld the hospital's immunity under HCQIA and found that the physician did not by a preponderance of the evidence show the hospital actions were unreasonable.       

 ExParte Bon Secours St. Francis Xavier Hosp.
SC Supreme Court

Some hospital attorneys are really stupid.  This one must have an ego to fill the court house.  A physician sued the hospital after being terminated.  The hospital attorney had the case removed to the federal court because HCQIA was involved.  He can not do that.  There were no federal complaints.  The case was sent back to the state and then the dumb attorney again sent the case to federal court on the same conditions.  This time when the case was remanded back to the state, sanctions were introduced against the hospital due to it's attorney by the state court.  The attorney then, probably to attempt to keep his job, appealed the judgment.  The hospital had to reimburse the physician for his costs due to the hospital attorney's mistake.      

Gargiulo v Baystate Health
Fed Court

After the physician was terminated she sued for age and disability discrimination.  She asked for production of her records and those of those similarly situated.  The hospital fought based on peer review privilege.  There is of course no federal peer review privilege so the hospital had to give all the documents.    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.