Holland & Hart Healthcare Law Blog

Right Knee, Wrong Part, No affidavit: Special Malpractice Statute Unconstitutional.

Monica Belinda Zeier brought a malpractice suit against Zimmer, Inc. and Theron S. Nichols, M.D., asserting that the doctor installed the wrong and defective replacement parts manufactured by Zimmer during her knee replacement surgery.  Ms. Zeier failed to attach an affidavit of medical negligence signed by a physician to her complaint as required by Oklahoma law prior to the commencement of a lawsuit. Her case was dismissed. She challenged the decision by the trial court, asserting that the state law was unconstitutional in that it violated a provision in the Oklahoma state constitution prohibiting "special" statutes.   In Zwier v. Zimmer, Inc., and Theron S. Nichols, M.D., 2006 WL 3717904, the Oklahoma Supreme Court agreed.

Physician Recruitment Fraud

There appears to be a growing trend toward the fraudulent inducement by some hospitals of physicians to relocate their practices and move to a new hospital cachement area based upon false representations as to the assistance the hospital can or will provide to establish the physician in the community, the "pent up need" for the physician's services in the community and the existence of a favorable payer mix in the community.  Many of these representations are made by head hunters out to score a "head" at all costs.  A physician with a useful specialty for the hospital moves or starts his or her practice in the community and frequently finds that he or she is treated pretty much an employee without the security of a salary.  The hospitals use the inducement of an "income guarantee" for the first year to help jump start the practice.  The income support usually runs for a year and then disappears.  The amount advanced in the first year is then converted into a loan with the balance to be forgiven over the next three years if the physician continues to practice in the community.

Price Fixing Along I-94

I-94 is the largely industrial highway linking Chicago and Detroit. Recent public and private actions assert price fixing activity in both cities. In metropolitan Chicago Advocate Health Partners, a “super physician hospital organization,” resolved its FTC investigation for price fixing and refusal to deal by agreeing to a proposed order which essentially prohibits using further negotiation with health plans on behalf of approximately 3,000 physicians in the area. See In Re Advocate Health Partners, FTC File No. 0310021 (12/29/06). Advocate Health Partners apparently undertook to negotiate private contracts with health insurers on behalf of a network of related PHO organizations which included pods of independent physicians and a subsidiary corporation of the Advocate Health Care Network Hospital System.

Kentucky Court of Appeals holds no medical testimony necessary to prove negligence where doctors attempt removal of missing organ.

Generally a plaintiff in a medical malpractice case must provide medical testimony to establish negligence by a physician.  The reason is that the courts view the intricacies of medicine as being outside the knowledge and understanding of lay persons and therefore require medical testimony to assist a jury before it can render a verdict in a professional malpractice case.  Obtaining medical testimony is frequently a difficult task for a plaintiff because of the reluctance of physicians to testify against each other.  In the Kentucky case of Matheney v Sharpe, M.D. 2006 WL 1962303, (2006), the Kentucky Court of Appeals reversed a trial court that had dismissed Ms. Matheney case on summary judgment because of her failure to provide expert medical testimony supporting her claim.  Her treating physician and surgeon filed affidavits that they had performed their duties within the standard of care in the community.  It the absence of a countervailing affidavit by a physician establishing a breach of the standard of care, the court dismissed her case.