September 1, 2006 Recent Legal News







Right To




Peer Review


Kaplan v 21st Century

Dr. Kaplan is a radiation oncologist in Lakeland, Florida.  He is getting no referrals of Humana patients by 21st Century, a primary care group.  The reason is that the primary group, which pays for all referrals out of their money, has a deal brokered by Oncology Consulting Services to only pay one-tenth the normal rate as long as they send all their other business to the same radiation oncology service.  Also the head of 21st Century just happens to own and be the Secretary of Oncology Consulting.  How convenient.  How immoral!!

US v Schering-Plough

In one of the largest settlements seer by a pharmaceutical company, Schering-Plough agreed to pay $435 million to settle all civil and criminal charges against it by the government.  They were accused of illegal kickbacks to physicians, illegally marketing off labeling uses for tis products and misreporting pricing data to fed programs.  This is the third time in five years this company has paid multimillion dollar settlements.  They will also have a Corporate Integrity Agreement with the government.    Top


Physicians v Medicaid

Physicians in Georgia have filed suit against private companies that manage the Georgia Medicaid programs.  They are seeking class action status.  The physicians claim the companies knew when they bid for the contracts that they were incapable for paying for services.  This has caused injury to the physicians by their having to lay off employees and scale back their Medicaid business.  The program putting 590,000 Medicaid people into private HMOs went into effect several months ago.  The insurance companies state that their performance has improved. 

FTC v Two IPAs

The FTC has charged two IPA with anti-competitive action by combining in order to force health plans to accept their terms. The IPAs are in Kansas City and are the Prime Care of Northeast Kansas, LLC and New Century Health Quality Alliance. 

Abraham v Richland Parish Hosp.
La. Ct. App.

Three physicians sued the hospital for antitrust.  The hospital won on summary judgment for the usual reason of geographic market.  The physicians wanted a small market confined to the area of their clinic.  The hospital wanted and received a larger geographic market where some patients actually came from and where some patients went.         Top


Patients v VA
To Be Filed

The VA has notified over 38,000 Texas patients that their prostate needle biopsies may have caused hepatitis or HIV.  They admit they did not clean the needles adequately.    

Zielinski v Kotsoris
Conn. App. Ct.

The patient sued the neurologist and hospital radiologist for missing a brain tumor on an MRI over three years prior to a second MRI reading.  She was told she had Lyme Disease.  Three years later the correct diagnosis was made and the original MRI showed the early brain cancer.  The suit was filed 5 years after the original blown diagnosis but within two years of the malpractice being found.  Connecticut has a rule that there is a three year drop dead date from the date of injury.  The theory of a continued course of therapy failed.  The malpractice action was time barred.

CW v The Cooper Health Sys.
NJ Ct. App.

CW was hospitalized for changes in mental status.  He had an HIV test performed but the results did not come back from the private lab until after the patient was discharged.  The test was positive.  The hospital did not communicate the test result to the patient or the physician.  The patient had unprotected sex and gave the disease to his partner.  The partner tested positive but the daughter was negative.  All sued the hospital and physician.  The trial court dismissed the case by the partner and the daughter as there was no duty to inform them.  The partner appealed and won as she was a foreseeable individual and was harmed due to the hospital's error.   

Doe v Vigliani
To Be Filed

Dr. Marguerite Vigliani of Rhode Island in 2005 did the wrong surgery on a patient.  The ovaries were removed on a patient who did not want them removed.  There was a JCAHO mandated timeout and there was a discrepancy between the scheduled operation and the consent form.  The physician and the charge nurse gave the go-ahead. There were two patients with the same last name.  The doctor immediately reported the mistake to the patient, hospital and regulating agencies.  The Medical Board investigated and gave her a public acknowledgment of the error. 

McCloud v Geary Community Hosp.
D. Kan.

The plaintiff sued the hospital for med mal and wrongful death.  The plaintiff's attorney objected when the hospital wanted to meet with the treating physicians without the plaintiff or plaintiff's attorney present.  The plaintiff believed this was a violation of HIPAA.  Of course, ot is no violation.  The patient put the medical chart in evidence when the suit began.  The hospital also had a court order to allow it to speak with the physicians.  The plaintiff lost.          

Indiana v Fillenwarth Legal Firm
Jury Verdict

Indiana sued the Indianapolis labor law firm of Fillenwarth, Dennerline Groth & Towe.  The firm was shown to have known about their client's (Indiana Construction Industry Trust) financial position and did not report it to their client.  This little error cost them $18 million.  As a side twist, the firm is suing their malpractice insurance company for not allowing them to settle for $1 million, their liability limit.  The 8200 members of the Trust will now get some money to pay their medical debts.  The attorneys may appeal as a strategic move to attempt to lower the amount.      Top


Ohio v Boesen

Dr. Peter Boesen of Des Moines, Ohio, and his brother have been convicted of insurance fraud.  They performed unnecessary procedures or billed for unperformed procedures.  The convictions were for 82 counts.  Each count could garner 10 years and a $450,000 fine.    

Michigan v Omnicare
Close to Settlement

 The two parties are close to agreeing about the amount Omnicare will pay to Michigan for allegedly overbilling the state for pharmacy.  The numbers being discussed is almost $60 million.  The Omnicare stock has gone in the tank.  I would assume a shareholder suit will soon follow. 

US v Our Lady of Lourdes

Our Lady of Lourdes Hospital in Louisiana has agreed to pay the government $3.8 million for illegally billing government agencies for medically unnecessary cardiology procedures by Dr. Mehmood Patel between 1999 and 2003.  This was a whistleblower suit by a competing cardiologist who will get $760,000 of the settlement.  Reading between the lines it is obvious that the hospital was warned about Dr. Patel but did nothing.    

US v University Hospitals

The University Hospital System of Ohio will pay in a whistleblower case $14 million to the government.  This was for phony medical directorships, hospital payments for private practice physicians, paying over retail for private practices, giving no-interest loans to physicians with no required repayment.  Dr. Kirby, the then co-chair of the Cardiothoracic Department was the whistleblower.  He will receive $1.5 million plus attorney fees.  He is now practicing elsewhere.  

US v Beverly Enterprises

Beverly Enterprises will pay $20 million for the alleged False Claim Action of its subsidiary MK Medical.  About 3/4 will go the the feds and the rest to California.  The allegation is the DME supplier did not have the information to back up its claims.      Top


Calhoun v WHA Med Clinic
NC Ct. App.

 Calhoun was part of a group of cardiologists that split from the multi-specialty clinic WHA and set up their own shop within a restricted area as defined by a covenant.  The trial court said the covenant and the liquidated damage section was enforceable.  The court of appeals agreed.  The cardiologists could pay the liquidated damages and could stay in the area so there is no damage to public policy or health.  The case was sent back on the issue of whether the cardiologists should pay the legal fees of the clinic.

Boylston v Our Lady of Bellefonte Hosp.

 Boylston was recruited and signed a five year contract.  Two years into the agreement Dr. Boylston was called up for active duty in the United States Army Reserve.  He closed his practice and the hospital said he was in breach of his recruitment agreement.  Dr. Boylston filed suit under the Soldiers and Sailors Relief Act.  He lost.  The Act does not cover contractual matters.  The hospital won but it comes across as the Scrooge of the worst order.  It certainly does not look like a Catholic thing to do.  

Adams v Rapid City Hosp
D S. D.

A physician sued the hospital for breach of an employment contract.  The physician, a cardiac surgeon, was offered a position after providing locum coverage.  The physician initially rejected the contract but continued to provide locum work.  The administration changed and no further negotiations were pursued.  The major group of cardiologists then told the hospital that they would not refer to any employed cardiac surgeon.  The hospital gave the physician a whopping $10,000 for his trouble and the physician sued.  He, of course had no case, since there was no contract either express or implied.  The court stated that there is an issue of potential beach of prospective contract against the cardiology group.       Top


Strickler v Iowa Board
Iowa Ct. App.

Dr. Richard Strickler, an ER physician, had his license challenged for incompetency in the care of three patients.  The final decision by the Board was only a warning on the incompetency issues.  The trial court upheld the Board.  The Court of Appeal also upheld the Board.  The physician argued that only a single transaction or occurrence or ordinary negligence is not grounds for discipline.  The Court agreed but the physician was discipl9ned for repeated acts in the care of multiple patients.  The physician lost.         Top

Right To

Virginia v Charrie
Consent Decree

Abraham Charrie, age 16, has Hodgkin's Disease.  He has undergone one bout of chemo and became very ill from it.  He refused the second round.  Virginia took joint custody of him and then said he needed to have the chemo.  He sued and the decision is that Abraham and the state agreed that he will be treated by a radiation oncologist who believes in alternative therapy and he will get radiation if necessary.  In the meantime he will go on a Mexican, non-FDA approved diet.  The decree also states the parents were not medically negligent.  This consent holds until age 18 or he changes his mind.      Top


USC v Tenet

USC has filed suit to rid itself of Tenet due to the poor reputation of Tenet.  The two had been partners in the hospital for over 20 years.  The suit asks for a permanent injunction against Tenet's interest plus attorney fees and costs.  Tenet says that this is only a negotiating tactic since there is an arbitration agreement in place.         Top 


US v Hurwitz
New Trial

In a blow to the government, Dr. William Hurwitz, a prominent pain specialist who was railroaded by the government, was granted a new trial because of judicial mistakes.  Dr. Hurwitz prescribed legal amounts of medication to true pain patients.  Those patients resold the meds.  Dr. Hurwitz was backed by all the patient groups and pain physicians.  He was also the cause of a change n a federal website regarding pain.  The original website which had information agreed to by the feds and a panel of pain specialists was changed since the information would have helped Dr. Hurwitz.   

Florida v Belin

Dr. Ronald Paul Belin, a podiatrist, was arrested in Florida one day prior to getting his Florida license for passing forged prescriptions for OxyContin.   

Kentucky v Thomas

Dr. David A Thomas, an anesthesiologist in Louisville, has been accused by Kentucky of writing prescriptions to workers for remodeling his properties. He could get 20 years in prison and a $1 million fine. Dr. Thomas also has a consent order with the medical board not to write any narcotics.  Dr. Thomas no longer practices and was removed from his hospitals and his anesthesiology group.          Top


Henderson v Med. Ctr. 

Henderson, a pregnant woman was in an auto accident. She went to an ED on her own to make sure the pregnancy was OK.  The hospital ED did no exam and told her that it was hospital policy that since her OB was not on staff it was up to the on-call OB whether or not she would be seen by the OB.  The patient left and went to the hospital where her OB practiced.  She sued the original hospital for not examining her and for discouraging her from remaining at the hospital.  At summary judgment the hospital lost as well they should.        Top

Peer Review

Carr v United Reg. Health
ND Tex.

Dr. Carr after being terminated from the medical staff and being reported to the NPDB sued in pro per in Federal Court.  He got what one would expect, a verdict for the hospital in summary judgment.  The Court had no jurisdiction over the ADA claims since the physician did not exhaust his administrative remedies.  There were no Constitutional claims since the defendants were all private.  His claim regarding the NPDB was frivolous.

Virmani v Presbyterian Health
4th Circ

Dr. Virmani was terminated from the medical staff.  He sued in state court for breaching the bylaws and lost.  He then sued in federal court for discrimination.  He lost at summary judgment since he did not raise the issue in state court. This is the end of a long case.  

  El-Sherif v Ad Hoc Comm.
NY Super.

Dr. El-Sherif was summarily suspended from the hospital.  He asked for and was granted a peer review hearing.  Ten months later the issue was still not resolved and there was no resolution in sight.  Dr. El-Sherif sued to make the committee do its work and won.  The court ordered the committee to meet at frequent and regular interval until the hearing was concluded.  The committee had not the expertise to evaluate the physician and needs to obtain and pay for outside experts.  Using the age old definition of chutzpah the hospital said that the suit could not be ripe since the physician had not exhausted all his administrative remedies.  Dumb argument from a dumb attorney representing a dumb hospital.  

Shelton v Schneider

 Shelton was dismissed from a hospital.  She claimed it was because of her advocacy for minority children and Medicaid people.  She lost at summary judgment since she sued for discrimination and she was not in any protected class.  I fail to understand how any attorney could not know this and continue to spend the client's money.   

Sullivan v E. Health
Ala. Supreme Ct.

I don't understand how this reached the state's high court.  The physician was sent a certified letter informing him of a right to a hearing for peer review and he had 30 days to respond.  The certified letter was signed by an office staff.  The physician did not respond to the letter and was dismissed without a hearing.  He sued and stated that he was never notified of the hearing.  The hospital won all the way from trial court to the Supreme Court since his employee had signed for the letter he was deemed notified.  He wanted the letterbox rule to go to the jury but here is no letterbox rule when there is evidence of delivery.  A waste of money.

Ervin v Howard University

The physician was first relieved of her duties as chief of the ED and later discharged.  She sued and wanted certain documents under discovery.  The hospital refused stating they were peer review materials when indeed they were not.  The court reviewed the documents and found much of the material was not confidential.  They had been developed outside the peer review process and therefore are not protected.  The hospital was ordered to reevaluate all its documents. 

Cohimia v Ardent Health
N D. Okla.

The physician sued the hospital for the summary suspension at one hospital and the non-renewal of the privileges at another hospital and both sent to the NPDB.  The physician stated that he was singled out since he was an economic competitor .  The court found that the early stage there was enough to overcome the hospital's summary judgment motion on Sherman Section 1 but did grant summary judgment on Sherman Section 2.  There also is no peer review privilege in federal court and the discovery may continue without any claim of privilege.   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.