January 15, 2001 Legal News

 

New Laws
Fines
Ethics- Life Support Ruling
HMO v Hospitals
Florida Sues to Keep Hospital Open
U.S. Supreme Court Denies Hearing on MCO Suit to Recover Funds
Humana Drops MDs, Racial Discrimination?
Physician Termination
Chutzpah and Stupidity Overturned
EMTALA
Deadly Mouthwash
Georgia Hospital Antitrust Case
Georgia Physician Sentenced to 13 Months and Fined
Patient Consent
Good Samaritan Law

Exclusive contract

Board Certification Required

New Laws

Some of the new laws that took effect on January 1, 2001 are:

  1. Allowing patients to sue their HMO but first go before a panel. If the patient is not satisfied with the panelís decision or caused significant problems the patient may sue the HMO.
  2. Consumer credit card agencies are prohibited from providing medical information to insurers without patient consent. SB 2166
  3. Optometrists may prescribe antibiotic Rx for eye infections and glaucoma. SB 929
  4. HMO patients with HIV/AIDS must get a standing referral to a specialist until 1/1/04. AB 2168
  5. Chlamydia is now a venereal disease (what was it before?) and a physician without a good faith examination may treat the partner. SB648                     Top

Fines

United Healthcare has agreed to pay Florida $65,000 for slow pay and inappropriate reduced doctorís fees. I hope they also paid the people owed plus interest.

The prestigious Rush-Presbyterian Medical Center paid back to the government overbilled charges and a fine. The medical could have been fined much more money but came to the government on its own with the overbilling information. This proves the point that confession is not only good for the soul but also for the pocketbook.

Quorum had to pay $700,000 to the Feds for billing for a physician that had been on the OIG excluded provider list. The doctor performed services at the hospital but was employed by Health Net. I wonder how much Health Net is going to be hit for. Do you do a check regularly for excluded providers with whom you deal? This includes not only physicians but also all vendors.    Top

Ethics- Life Support Ruling

A 29 year old disabled patient with CP since birth has never walked, talked and has severe mental retardation. She is not terminally ill but has a terrible quality of life. The mother was the guardian and authorized the cessation of any heroic measures. The patient is in a fetal position, fed with a feeding tube and has a significant number of infections. Apparently she could recognize her name and track employee movements with her eyes. She was placed in a hospital for one of these infections. A first year resident discussed the options with the mother who made the decision not to replace the ET if the patient could not breathe. The third year resident disagreed with the decision and several days later the Advocates for the Disabled intervened, went to court and had the decision of the mother reversed and the mother removed as the guardian. The case turns of North Carolina law that states terminally ill or PVS patients may have withdrawal of life support. Since this patient had neither she would be excluded. The other side has stated that these are not the sole conditions that can lead to withdrawal of support but are only a "safe harbor". The case is on appeal. What would your hospital do under these facts? Please see the new California Advance Directive Laws.                                        Top

HMO v Hospitals

The time has past and there has been no agreement between Blue Cross HMO and Sutter Systems. This means that those hospitals and physicians are off the list for the HMO. Those patients with Blue Cross PPO may continue to go to any of the institutions or physicians.            Top

Florida Sues to Keep Hospital Open

Florida has filed suit against Intercoastal Health Systems to keep its failing St. Maryís Hospital of Palm Beach open as a full service hospital. The state claims the Board has mismanaged the hospital and wants a new board or a conservator assigned. The legal question is does a state have the right under its police powers to force a private institution to stay open and lose money or is it a taking that requires state compensation. California does not have any laws on the books to allow for the keeping open of hospitals that wish to close or close their emergency rooms.     Top

U.S. Supreme Court Denies Hearing on MCO Suit to Recover Funds

The high court has denied a hearing by Reynolds Metal against an employee for recovery of medical expenses it put out via a self-insured plan. The employee received medical care and then received money from the party that caused the injury. Both parties in the suit asked the Supreme Court to not review the decision of the 9th Circuit that stated there is no law permitting the suit to go forward. This usual reason for the request to drop a case is a settlement.                 Top

Humana Drops MDs, Racial Discrimination?

Humana has dropped eight Florida primary care physicians from their panel. These physicians are all minorities. No Caucasian physician was dropped. Humana states there are no racial overtones but that these physicians are poor HMO performers and were offered PPO contracts. One doctor stated he lost 60% of his practice in one day. As with investing, physicians need to diversify their insurance plans. When they donít, this is what may happen.                   Top

Physician Termination

Horn v New York Times

A physician working full time as an at-will employee for The New York Times was fired (position eliminated and physician terminated) after refusing to divulge medical information of the employees to the paper without the patientís consent. The physician sued for wrongful termination and won. Even though she was an at-will employee the employer owed a duty of good faith and fair dealing to the physician.             Top

Chutzpah and Stupidity Overturned

Williamson v Liptzin
NC Ct of Appeal

A law student in North Carolina had disruptive tendencies and was seen for six counseling sessions by Lipzin. Eight months later Williamson shot and killed two unarmed people and in turn was shot in the legs by police. Williamson sued Liptzin for negligence in causing him to murder and be shot. A jury actually bought it and awarded Williamson $500,000. Sanity however prevailed and the Court of Appeal overturned the jury verdict since Lipzin was not the proximate cause of Williamsonís injuries.                 Top

EMTALA

Ingram v Muskogee Regional Medical Center
10th Cir.

A patient came to the ED with a GSW and a surgeon was called. The surgeon admitted the patient and came to see him. The surgeon determined that the patient needed cardiovascular surgery and there was no one on staff to perform the surgery. The patient was transferred to another facility with the proper surgeons but died en route. The hospital was sued under EMTALA for not minimizing the risk of transfer. The court awarded summary judgement to the hospital since it is up to each hospital to determine its own capabilities by establishing standard procedures.                 Top

Deadly Mouthwash

Four patients of Fargo N.D. MeritCare Hospital died last year apparently from hospital mouthwash contaminated with Burkholderia cepacia. The mouthwash is Dawn/Mist Mouth Rinse made by Hi-City Manufacturing of Malaysia and Donovan Industries, the distributor.                             Top

Georgia Hospital Antitrust Case

In a antitrust case that is not entirely unlike the San Francisco St. Lukeís v CPMC antitrust case that led to a settlement and eventually to Sutter purchasing the last independent San Francisco hospital, Atlanta Georgia Saint Joseph Hospital sued its across the street rival Northside for antitrust. Northside held exclusive contracts with insurers for "all covered services" in certain zip codes. This exclusivity affected three competing hospitals including Saint Joseph and allowed Northside to do 14,000 births in 2000, the most of any community hospital in the U.S. In the suit Saint Joseph won the first round by the judge ruling against Northside in a summary judgment motion.                     Top

Georgia Physician Sentenced to 13 Months and Fined

A physician was convicted of illegal kickbacks by receiving money in the form of placing his employees on the payroll of an ultrasound company. Top

Patient Consent

Threilkeld v White Castle
N.D. Ill Jan 3, 2001

Stating she was uncooperative, police brought a patient to a hospital emergency room. The patient was restrained and medicated without her consent. The court ruled this is battery, the unconsented to touching of another, an intentional tort. Intentional torts carry the high likelihood of punitive damages. Never treat anyone without his or her consent unless there is an immediate danger to the patient.                 Top

Good Samaritan Law

Velazquez v Jiminez
N.J. Appellate Ct. December 19, 2000

A physician was found 3% negligent (a substantial factor) in the death of a newborn when after pushing the infantís head back into the uterus to allow a C-section he was splashed by amniotic fluid. Instead of checking for a placental compression he went to wash off the fluid. The baby suffered anoxia and died. The doctor claimed Good Samaritan status that was rejected by the court stating that there is no entitlement to immunity in a hospital. In California this is not true. If one who has no duty to the patient responds to an emergency in a hospital he or she is protected under the Good Samaritan laws unless there is gross negligence.                 Top

Exclusive Contracts

Mahan v Avera St. Lukeís
2001 SD 9

The hospital refused to process the application for medical staff for an orthopod in a group that owned a competing surgical center. The hospitalís reason was the closure of the department pursuant to a hospital medical staff plan. The lower court ruled for the hospital. The Supreme Court ruled for the hospital because even though medical staff bylaws are deemed a contract, the board has the ability to make business decisions without first consulting the medical staff. "Any powers supposedly granted under the bylaws must originate from and be authorized by the Board pursuant to the Corporate bylaws. They are not separate and equal sovereigns.                                Top

Board Certification Required

County of Toulumne v Sonora Hospital
9th Circ.

The ninth Circuit Court of Appeals has ruled that it is in the purview of the hospital whether or not to require OB board eligibility or certification for performing C-sections. A qualified FP was denied privileges by both the Medical Executive Committee and then independently by the Board. He sued under the antitrust laws and lost due to the lack of any direct or circumstantial evidence of a conspiracy. Just because the Board follows the recommendation of the MEC does not mean there is a conspiracy or a rubber stamp.     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.