March 1, 2003 Recent Legal News

Patient and Physicians v HMO

Cicio v Vytra Healthcare
2nd Circ

Mr. Cicio had multiple myeloma.  His oncologist recommended high dose chemotherapy and a double infusion of stem cell transplant.  The medical director denied the request as experimental.  He allowed only a single infusion which is less effective.  Mr. Cicio died and the family sued the HMO and the medical director Dr. Brent Spears for not authorizing treatment early enough.  Vytra raised ERISA.  The lower court stated this was a mixed eligibility and treatment decision and therefore could be considered a state malpractice action under Pegram v Herdich.  The Federal judge stated that the plaintiff has alleged more than an adverse benefits decision.  They also alleged that the HMO and Dr. Spears made a negligent medical determination with respect to the treatment.  This court distinguished a 5th circuit case of Corcoran v United Healthcare which was decided prior to the US Supreme court Pegram decision.       

Kentucky Physicians v HMOs
Boone County, Kentucky

A judge in Boone County, Kentucky has ruled that the physicians can continue their class action suit against Aetna, United Healthcare, Anthem Blue Cross and Humana.  The HMOs asked for a dismissal and to make each of the 1900 physicians go through individual arbitration agreements with the insurers.  This is the same ploy the to date has not worked in the Florida case.  The judge ruled that the physician have a right to seek damages since their reimbursement in the area is 30-50% lower than comparable markets.  The physician also have a right to an injunction against the insurers price fixing practices.   This was the same ruling as last month's Cincinnati ruling that certified a class action against Anthem for the same shoddy practices.     

Speaking of the Florida case, Cigna lost again.  They had agreed to a settlement in Illinois but the attorneys in Florida took the settlement to court stating it should be all in the Miami Court.  The independent judge agreed, vacated the settlement and moved it to be consolidated with the remainder of the case in Miami.  The settlement will now be overseen by Judge Moreno. The judge who transferred the case to Miami stated Cigna used underhand methods to get the settlement approved.

In a separate action the US Supreme Court heard arguments regarding the notion that the physicians must have individual arbitrations prior to suing.  

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Hospital Error

Santillan v Duke Univ.

A 17 year old received a heart lung transplant by someone not her blood type.  The organs had been sent to Duke from the New England Organ Bank.  The settlement will soon follow.  Several days after the discovered error the old set of heart-lungs were removed and a new transplant performed with a correct donor typed organs.  The patient suffered complications and died soon after the second transplant.     Top

Malpractice

Lee v Wesley
Settlement Kansas

In January 2000 Mr. Lee was in congestive heart failure and had to wait one hour and thirty eight minutes for treatment.  The first suit ended in a verdict for the hospital but there was juror misconduct and a new trial was ordered.  This undisclosed settlement came the day before the second trial. The plaintiff's attorney stated that this was about the hospital admitting error.  He said that although settlements usually do not state fault, the hospital paid money, not us.

Hayes v Courtney
Damage Reduction

In the civil trial by the plaintiff against Robert Courtney, a pharmacist who diluted drugs for greater profit, the judge reduced the verdict.  The original suit was against not only Courtney but also Lily and Bristol-Meyer Squibb.  The drug companies settled for $71 million payable to be split between the over three hundred plaintiffs.  In the Hayes case, the only one to go to trial, the jury awarded economic expenses of $571,439, non-economic damages of $225 Million and punitive damages of $2 Billion.  The judge reduced the two outrageous amounts to $29.5 million and $300 million.  The exercise is one of symbolism since they will never see any money from Courtney.  

The attorney for Courtney has filed a brief asking for a reduction in the thirty year sentence.  He states that this is longer than the federal guidelines.  The guidelines actually do allow the longer sentence if the crime endangered the public health, which it did.  Could it be the attorney is looking to make more money?     

Rice v Fotovat
Conn. Superior Ct.

Thank God for reasonable judges.  A patient sued a physician and hospital for malpractice after an injury during gall bladder surgery performed by a resident under the supervision of a physician.  The hospital moved for summary judgment since the resident that they paid was under the direction of the physician.  The court rightfully threw out the claim and allowed the hospital to stand trial.   

Patients v Guiler

Dr. Guiler is the physician who branded the uterus of a patient with a bovie stating UK in order to tell the pathologist which side was right or lift on hysterectomy specimens.  Since that case was publicized none other females have looked for the golden ring and also filed suit. This was found on the tapes of their surgeries. All the suits should be dismissed but not until the attorney filing them has spent alot of money on them.        Top

Employment

Cohen v Smith
6th Circ.

Cohen, a resident in a hospital, had several clashes with the hospital over his behavior.  The final straw was when the resident had a verbal altercation with the local police and the police reported him to the hospital.  The hospital then let him go.  He sued the police for the report that cost him his job.  He lost since the police only reported the incident and they made no decision regarding his employment.        Top

EMTALA

Morales v Hospital Hermanos
D. PR

In yet another EMTALA action, a parent of a newborn sued the hospital for not stabilizing the infant prior to transfer to another hospital.  The case was tossed since the parents were not able to show disparate treatment.  Again another court has stated that one can not graft an EMTALA claim on a malpractice claim.        Top

Bankrupt Attorneys

Health Plan of the Redwoods
Bankruptcy

The final returns are in and the winners in the bankruptcy of the Plan are the attorneys.  They received almost a million dollars where as the physicians and other creditors only get 25 cents on the dollar.  This represents full billing from the attorneys.        Top

Fraud and Abuse

Mass. v Lahey Clinic
DC Mass

The Lahey Clinic and the University of Mass. Memorial Medical Center have been sued by the feds for doing unnecessary lab tests.  The tests weren't ordered by the attending physicians.  The feds also have added unbundling to the charges.  Eight other hospital settled similar cases in 2000 for a total of $1 million repaid to Medicare.

In Missouri a nursing home and a physician conspired to admit fraudulent admissions to the nursing home.  Five nursing home administrators including the owner, the administrator of the billing service, two other home health administrators and their billing agent will all pay fines.  The first four and a physician who conspired with them will spend jail time as well.  The last one only got the fine.        Top

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