Holland & Hart Healthcare Law Blog

ILLINOIS SUPREME COURT CLOBBERS (TORT REFORM) CAPS.

    Bucking a trend in other states, the Illinois Supreme Court held this week that state liability caps imposed on non-economic damages in medical malpractice cases violated the Illinois constitution’s separation of powers clause.  It found that the legislatively imposed caps was too bold an intrusion on the powers of the judicial  branch. A number of states have already passed similar statutes that have been upheld by the highest courts in those states. See Garhart v. Columbia/Health One, LLC, 95 P 3d 571, 581-82 (Colo. 2004); Judd v. Drezga, 103 P 3rd 135 (UT 2004) and Kirkland v. Blaine County Medical Center, 49 P 3rd 115, 121-22 (ID 2000).

Transplant Follies: Live Liver Lie Leads To Surgeon Indictment

It is a felony to lie to a federal government official concerning an administrative matter or process within his or her jurisdiction. Dr. Richard R.Lopez, M.D., 54, the former head of the liver transplant program at St. Vincent’s Medical Center in Los Angeles, CA was the recipient of a grand jury indictment this month for lying about and falsifying records concerning a liver transplant to federal transplant officials.  The lie was essentially to deceive the identity of the actual recipient of the liver. 

MONTANA AFFIRMS RIGHT TO PHYSICIAN ASSISTED SUICIDE-THROUGH STATUTORY, NOT CONSTITUTIONAL, ANALYSIS.

In a decision filed on the last day of 2009, the Montana Supreme Court affirmed a lower court decision concerning the right of a dying patient to a physician assisted suicide though it based its decision on an analysis of Montana statutes and public policy rather than the state Constitutional analysis adopted by the trial court below. In Baker et al v. The State of Montana et al., 2009 MT 449 (MT, December 31, 2009), the court followed the maxim of Viscount Falkland that when it is not necessary to make a decision, it is necessary not to make a decision and side stepped addressing whether there exists a constitutional right to die with dignity in the State constitution as requested by the principal plaintiff, Robert Baxter. Mr. Baxter, a retired truck driver, suffered from lymphocytic leukemia with diffuse lymphadenopathy.  Mr. Baxter, now deceased, contended that the State Constitution gave him the right to choose the timing and circumstances of his impending death, rather than suffer the indignities that he perceived in palliative care and the imposition that a drawn out departure would have upon his family.  He wanted the right to obtain a prescription of life terminating drugs from his physician without fear that his physician would be prosecuted for violation of state law.

PHYSICIAN PRACTICE GROUP –COVENANTS NOT TO COMPLETE

 The enforceability of covenants not to compete in physician practice group employment

agreements vary from state to state. These covenants continue to develop legal angst as courts

try to balance the protection of legitimate practice group interests against an individual

physician’s right to practice his or her profession in a continuing location.  There is also

the rights of patients to continue access to their preferred physicians to be considered

(although patient interests are rarely identified as specific elements in court decisions). 

The Montana Supreme Court, in Dr. James Mungus et al v. Great Falls Clinic LLP, 2009 MT 426

(MT, December 15, 2009) reversed a summary judgment granted in favor of the physicians seeking

a declaratory judgment that their covenants not to compete were unenforceable.

 

WIFE STATES CLAIM AGAINST DENTAL MANAGEMENT COMPANY FOR DELIVERY OF DRUGS HER SURGEON HUSBAND OVERDOSED ON.

The denial of the defendant’s motion to dismiss in the case of Kim v. Interdent, Inc., No. C 08-5565 SI in the U.S. District Court for the Northern District of California seems to fall among those odd “man bites dog” cases that are both perplexing and irrational. Ms. Kim is the surviving spouse of Dr. Richard D. Bae, who apparently developed a fondness for Fentanyl, a highly addictive drug used primarily by anesthesiologists in sedating patients. The defendant, a dental practice management company, delivered the drug to Dr. Bae, in bulk, which he proceeded to carry around to the various Interdent offices where he performed procedures. Dr. Bae accidently overdosed on the drug and collapsed on the bathroom floor of the Interdent office in Stockton, California, on December 13, 2006. He never regained consciousness and died on April 16, 2007.

MONTANA SUPREME COURT AFFIRMS INJUNCTION AGAINST HOSPITAL SUSPENSION OF PHYSICIAN WHO DENIED IT ACCESS TO HIS FAMILY’S PRIVATE MEDICAL RECORDS.

 The Montana Supreme Court affirmed the issuance of a preliminary injunction restraining Community Medical Center, a hospital in Missoula, Montana for suspending the medical staff privileges of a hospitalist whose only offense was to refuse to grant unrestricted access to his family’s medical records to a hospital subcommittee. The physician designated as “Dr. Doe,” in the case of John Doe, M.D. v. Community Medical Center, Inc., DA08-0397, decided on November 24, 2009, asserted that that Community Medical Center  (“CMC”) breached the terms of its contract with him embodied in CMC’s medical staff bylaws and policies by summarily suspending his privileges with no demonstration of “ a substantial likelihood of imminent impairment of the health or safety of any patient, perspective patient, employee or other person present in the medical center” –the sole designated basis for summary suspension at CMC.

OREGON FINDS EXISTENCE OF PHYSICIAN/PATIENT RELATIONSHIP IN NEUROSURGEON’S TELEPHONE CONSULT WITH EMERGENCY ROOM.

 In the absence of a contract or direct physician/patient contact, when does a telephone consult ripen into a professional relationship?  The general rule seems to be that in the absence of some connection with the patient, merely listening to another physician’s description of a patient’s symptoms and offering a professional opinion regarding the proper course of treatment is not enough to imply a physician’s consent to a physician-patient relationship with the patient. The consulted physician is generally considered to be offering only informal assistance to a colleague. Se, e.g., Reynolds v. Decatur Memorial Hospital, 660 NE. 2d 235(1996).

THE REPUBLICAN HEALTH CARE LIABILITY REFORM PACKAGE

 Deep in the Republican Alternative Healthcare reform proposal unveiled by Rep. John Boehner (R) Ohio on November third, (The “Common sense Health Care Reform and Affordability Act,” can be found “Division C- Enacting Real Medical Liability Reform.” This section purports to nationalize state medical malpractice and medical product liability law and procedure into a uniform federal code which provides greater protection for doctors, pharmaceutical companies and medical device manufacturers.

IOWA HOSPITAL COUGHS UP $4.5M TO FEDS TO SETTLE STARK CLAIM THAT IT OVER COMPENSATED EMPLOYED DOCS.

In 2005 a group of physicians from Cedar Valley Medical Specialists in Cedar Valley, Iowa raised concerns with Sen. Charles Grassley, then Chairman of the Senate Finance Committee and with the IRS that Covenant Medical Center in Waterloo, Iowa was over compensating some of its employed physicians. According to 990s filed by Covenant with the IRS orthopedic surgeons Dr. Gary Knudson and Dr. Richard Naylor were paid $2.4 Million and $1.00 Million respectively for their services in 2002.  Dr. Victor Lawrinenko received $2.1 Million.

TEXAS “WHISTLE BLOWER” NURSE INDICTMENTS RAISE EYE BROWS.

 Things happen differently in West Texas where it can rain red mud. In Winkler County Memorial Hospital in Kermit, Texas two nurses who consider themselves as “patient advocates” have been indicted by Winker County Attorney, Mike Fostell for violation of Texas Penal Code 39.06, the misuse of official information, a third degree felony with the possible sentence of ten years.  Their crime?  They filed an anonymous complaint to the Texas State Board of Medicine concerning Dr. Rolando Arafiles, in which they assert that Dr. Arafiles improperly encouraged patients to purchase herbal remedies from him and wanted to use hospital supplies for a procedure in the home of a patient.  The nurses provided medical file numbers of six patients to the board.  The action of the nurses was in direct violation of a hospital board requirement that all physician complaints be filed with the hospital first before being reported to a state agency.