NOVEMBER 15, 2000 LEGAL CASES

Winona Memorial Hospital v. Kuenster (Negligent Credentialing)
Ind. Ct. App.

The plaintiff sued a hospital for negligent credentialing for a surgeon accused of medical malpractice. The plaintiff attempted to get around the Indiana Malpractice Caps. The court said the claim of negligent credentialing was directly related to malpractice and came under the Indiana Malpractice Act. This was true since the deciding factor in negligent credentialing was whether or not the physician was the cause of the injury.

State of Nebraska ex rel. Amisub, Inc. v Buckley (Incident Reports)
Nebraska Supreme Court

The Nebraska Supreme Court ruled in a malpractice case against a patient falling out of bed in a hospital that incident reports are discoverable. The court ruled the plaintiff could have not only this patientís report but also the reports of all reports of other patients who fell at the hospital. Since these reports are for the hospitalís internal review and even if they had been created at the request of any medical staff committee they are only factual and not privileged under Nebraska Law. It is also probable these reports are not protected in California.

Garibaldi v Applebaum (Exclusive Contracts)
Illinois Supreme Court

In this case an exclusive contract was given to a group of cardiovascular surgeons leaving out another surgeon on the staff. The excluded surgeon sued for loss of privileges and a right to a medical staff hearing. The court ruled that since the excluded surgeonís privileges were not revoked, suspended or reduced within the meaning of the bylaws and there was no challenge to any clinical competence no hearing was mandated. The court distinguished the granting of privileges, which qualifies a physician to practice in a hospital from the right to exercise those privileges made up of hospital administrative decisions unrelated to clinical competence. In California it has been long settled that exclusive contracts are legal for bona fide hospital reasons. The kicker is that if a hospital has a MediCal contract they may not have exclusive contracts.

Lyme Disease and Licensure

The New York Times on 11/10/00 states that New York has charged a Long Island physician for improper treatment of patients. Apparently there are two schools of thought regarding Lyme Disease treatment. The first is to treat with antibiotics for thirty days. This side has the blessing of the Dr. Charles Cutler, chief medical officer of the American Association of Health Plans. He stated that this is overuse of antibiotics. "Our concern is for good health quality care, and in this instance and others, good quality can cost less. But we have no financial incentive, our overriding intent is to do the right thing." The other school is the belief that in about 10% of the cases, long term clinical and antibiotic treatment is needed. This could be years of therapy. Twenty physicians from 10 states, Germany and Switzerland have signed a petition supporting the accused physician. His patients have also gone to bat for the physician. So far about 50 physicians nationwide have been subject to investigation or discipline for treating Lyme Disease patients. The legal question for me is if there are two reasonable schools of thought on an illness, is only one right? The courts have split on this issue.

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.