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SPECIALTY LAW - July, 2005 Health Care

Cases summarized in the July, 2005 issue of
Specialty Law Digest: Health Care.

GENERAL INDEX


affidavits of merit -- expert report failed to established causation between alleged negligent failure to perform vaginal ultrasound and injuries resulting from "bungled" hysterectomy. Raines v. Stephens (Tex.App. 2005), No. 10-04-00137-CV

-- good cause for late filing of required expert report was not shown by assertion that records had been sent to jailed physician and that communications were difficult. Cothren v. Thompson (Ill.App. 2005), 826 N.E.2d 534

-- malpractice claim properly dismissed for failure to file timely expert report. Hall v. Mieler (Tex.App. 2005), No. 01-03-01343-CV

-- pulmonary internist was qualified with respect to claims arising from improperly administration of intravenous dye injection. Hull v. Southern Illinois Hospital Services (Ill.App. 2005), No. 5-03-0800

age discriminatio -- male doctor failed to show age and sex discrimination with respect to termination of his employment. Morris v. Emory Clinic, Inc. (C.A. 11, Ga. 2005), 402 F.3d 1076

ambulance attendants -- issue of fact as to whether incorrect intubation of plaintiff's decedent constituted gross departure from standard of care. Kowal v. Deer Park Fire Dist. (N.Y.App.Div. 2004), No. 2004-00863

arbitration -- administrative failure by physician's office that led to delay in treatment was not covered by Medical Malpractice Act. Nash v. Brown (La.App. 2005), No. CW 04-751

-- rape victim's claim of failure of hospital to provide security could properly proceed without first resorting to arbitration. Afamefune v. Suburban Hospital, Inc. (Md. 2005), 870 A.2d 592

-- trial court erred in denying nursing home's motion to compel arbitration in connection with medical malpractice action filed against it on behalf of resident who had fallen from her bed. In re Ledet (Tex.App. 2004), No. 04-04-00411-CV

assignments -- summary judgment for plaintiff physician was denied because of his failure to establish that he had submitted assignment of benefits to defendant no-fault insurer with its notice of claim. Siegel v. Progressive Cas. Ins. Co. (N.Y.City Ct. 2004), No. 036527/04

attorney fees -- trial court abused its discretion when it granted post-verdict motion to amend pleadings to allow statutory award of attorney fees. Hess v. Fernandez (Wis. 2005), No. 03-032703-0327

attorneys -- attorney properly disbarred for improper solicitation of patients in emergency areas of hospital. Florida Bar v. Barrett (Fla. 2005), No. SC03-375

blood donors -- hospital disposed of subject blood donor records in manner consistent with regulatory requirements -- no spoliation of evidence allegation permitted. Hemingway v. New York City Health & Hosps. Corp. (N.Y.App.Div. 2004), No. 2003-08708

contracts -- defendants raised triable issue with respect to oral contract for dental fees. DeLeonardis v. Brown (N.Y.App.Div. 2005), No. 2004-06345

-- government required to pay Tribes pursuant to contracts for health services, even though Congress had not appropriated sufficient funds. Cherokee Nation of Oklahoma v. Leavitt (U.S.S.Ct.Okla. 2005), 125 S.Ct. 1172

-- non-competition covenant was not enforceable in counties where hospital employer did not compete. WellSpan Health v. Bayliss (Pa.Super. 2005), No. 405 MDA 2004

-- remand required in suit concerning termination of pathologist's employment agreement for "just cause." Uintah Basin Medical Center v. Hardy (Utah App. 2005), 110 P.3d 168

crimes -- defendant properly convicted for distributing misbranded drugs in interstate commerce with fraudulent intent. United States v. Milstein (C.A. 2, N.Y. 2005), 401 F.3d 53

-- nurse properly convicted for tampering with evidence and two counts of Medicaid fraud. State v. Corrai (Ohio App. 2005), No. 04AP-599

damages -- award of $350,000 for conscious pain and suffering during deceased inmate's 13-day hospitalization was appropriate. Arias v. State (N.Y.Ct.Cl. 2005), No. 97942

-- punitive damages were inappropriate in action alleging failure to timely diagnose pancreatic cancer. Brooking v. Polito (N.Y.App.Div. 2005), 791 N.Y.S.2d 686

dentists -- defendants raised triable issue with respect to oral contract for dental fees. DeLeonardis v. Brown (N.Y.App.Div. 2005), No. 2004-06345

discipline -- federal court lacked jurisdiction over physician's discrimination claims arising from license revocation. Guttman v. Khalsa (C.A. 10, N.M. 2005), 401 F.3d 1170

-- medical board properly posted on its Web site information pertaining to completion of physician's probation. Szold v. Medical Board of California (Cal.App. 2005), 25 Cal.Rptr.3d 665

-- osteopath's license proper revoked where he had had improper personal and romantic relationship with patient. Weinberg v. Board of Registration in Med. (Mass. 2005), 824 N.E.2d 38

discovery -- hospital incident report which only went to risk management, which was not hospital committee, was not privileged. In re Bridges (Tex.App. 2005), No. 13-05-00062-CV

-- physician's credentialing file was statutory privileged. Abels v. Ruf (Ohio App. 2005), No. 22265

-- surgeon's personnel and credentials file was privileged from discovery by medical malpractice plaintiffs. Troescher v. Grody (Pa.Super. 2005), No. 466 EDA 2004

discriminatio -- male doctor failed to show age and sex discrimination with respect to termination of his employment. Morris v. Emory Clinic, Inc. (C.A. 11, Ga. 2005), 402 F.3d 1076

discrimination -- federal court lacked jurisdiction over physician's discrimination claims arising from license revocation. Guttman v. Khalsa (C.A. 10, N.M. 2005), 401 F.3d 1170

-- nurse who was not pregnant at time health care provider decided not to rehire her was protected by Pregnancy Discrimination Act. Kocak v. Community Health Partners of Ohio, Inc. (C.A. 6, Ohio 2005), 400 F.3d 466

employment contracts -- remand required in suit concerning termination of pathologist's employment agreement for "just cause." Uintah Basin Medical Center v. Hardy (Utah App. 2005), 110 P.3d 168

ERISA -- plan administrators were to restitution in form of equitable lien as "appropriate equitable relief" under Section 502(a)(3). Administrative Committee of Wal-Mart Assocs. Health & Welfare Plan v. Willard (C.A. 10, Kans. 2004), No. 04-3081

estates -- issue of whether medical malpractice limitations period could be tolled by unrepresented estate statute would be certified to Georgia Supreme Court. Simmons v. Sonyika (C.A. 11, Ga. 2004), No. 04-14180

expert reports -- malpractice claim properly dismissed for failure to file timely expert report. Hall v. Mieler (Tex.App. 2005), No. 01-03-01343-CV

expert treatises -- algorithm, and table, entitled "Cardiac Risk Stratification of Noncardiac Surgical Procedures," was properly admitted into evidence. Hinlicky v. Dreyfuss (N.Y.App.Div. 2005), 791 N.Y.S.2d 221

experts -- expert improperly struck where he had extensive experience and expertise in procedure performed by defendant and was actively practicing in pertinent specialty when treatment was provided. Downing v. Larson (Tex.App. 2004), No. 09-04-167 CV

-- expert whose PowerPoint presentation was not produced was properly allowed to testify. Schexnayder v. Mathews (La.App. 2005), No. 04-1421

-- good cause for late filing of required expert report was not shown by assertion that records had been sent to jailed physician and that communications were difficult. Cothren v. Thompson (Ill.App. 2005), 826 N.E.2d 534

-- physician who currently worked for insurance companies was competent to testify where he had been engaged in full-time clinical practice at time of alleged malpractice. Aldridge v. Garner (Ohio App. 2005), No. 04CA2945

-- pulmonary internist was qualified with respect to claims arising from improperly administration of intravenous dye injection. Hull v. Southern Illinois Hospital Services (Ill.App. 2005), No. 5-03-0800

-- statute requiring valid medical license was applicable to claim filed prior to enactment where expert's testimony was heard after enactment. Bethea v. Philadelphia AFL-CIO Hosp. Ass'n (Pa.Super. 2005), 871 A.2d 223

-- surgeon qualified to testify regarding placement, creation, and post-operative care of stoma during surgery. Porter v. Sidor (Ohio App. 2005), No. 84756

fees -- defendants raised triable issue with respect to oral contract for dental fees. DeLeonardis v. Brown (N.Y.App.Div. 2005), No. 2004-06345

HMO -- constructive trust properly placed on funds which HMO had paid for "outreach expenses." State ex rel Flowers v. Tennessee Coordinated Care Network (Tenn.App. 2005), No. M2003-01658-COA-R3-CV

hospitals -- hospital disposed of subject blood donor records in manner consistent with regulatory requirements -- no spoliation of evidence allegation permitted. Hemingway v. New York City Health & Hosps. Corp. (N.Y.App.Div. 2004), No. 2003-08708

-- hospital's motion for summary judgment would be denied where hospital failed to establish that alleged delay in transferring plaintiff's decedent from one hospital to another was not departure from accepted medical standards. Guerin v. North Shore Univ. Hosp. (N.Y.App.Div. 2004), No. 2003-07769

-- incident report which only went to risk management, which was not hospital committee, was not privileged. In re Bridges (Tex.App. 2005), No. 13-05-00062-CV

-- male doctor failed to show age and sex discrimination with respect to termination of his employment. Morris v. Emory Clinic, Inc. (C.A. 11, Ga. 2005), 402 F.3d 1076

-- medical malpractice plaintiff not shown that Michigan hospital performed act or omission that directly caused him injury in Ohio. Sessoms v. Goliver (Ohio App. 2004), 2004 -Ohio- 7077

-- non-competition covenant was not enforceable in counties where hospital employer did not compete. WellSpan Health v. Bayliss (Pa.Super. 2005), No. 405 MDA 2004

-- physician was not entitled to injunctive relief with respect to termination of his staff privileges where he had failed to maintain continuous insurance coverage. Shands at Lake Shore, Inc. v. Ferrero (Fla.App. 2005), 898 So.2d 1037

-- physician's credentialing file was statutory privileged. Abels v. Ruf (Ohio App. 2005), No. 22265

-- rape victim's claim of failure of hospital to provide security could properly proceed without first resorting to arbitration. Afamefune v. Suburban Hospital, Inc. (Md. 2005), 870 A.2d 592

-- Secretary incorrectly denied reimbursement for services to certain low-income populations based on his interpretation of Medicare statute's Disproportionate Share Hospital calculation. Portland Adventist Medical Center v. Thompson (C.A. 9, Ore. 2005), 399 F.3d 1091

-- surgeon's personnel and credentials file was privileged from discovery by medical malpractice plaintiffs. Troescher v. Grody (Pa.Super. 2005), No. 466 EDA 2004

immunity -- physician immune from claims involving lack of informed consent and falsifying medical records. Botkin v. University of Cincinnati College of Med. (Ohio App. 2005), No. 04AP-228

Indians -- government required to pay Tribes pursuant to contracts for health services, even though Congress had not appropriated sufficient funds. Cherokee Nation of Oklahoma v. Leavitt (U.S.S.Ct.Okla. 2005), 125 S.Ct. 1172

injunctions -- physician was not entitled to injunctive relief with respect to termination of his staff privileges where he had failed to maintain continuous insurance coverage. Shands at Lake Shore, Inc. v. Ferrero (Fla.App. 2005), 898 So.2d 1037

instructions -- trial court's instructions were proper. Holda v. Blankfield (Ohio App. 2005), No. 84350

insurance -- no-fault insurers were entitled to review any medical charges and pay only those determined to be reasonable. Advocacy Organization for Patients & Providers v. Auto Club Ins. Ass'n (Mich. 2005), 693 N.W.2d 358

-- physician was not entitled to injunctive relief with respect to termination of his staff privileges where he had failed to maintain continuous insurance coverage. Shands at Lake Shore, Inc. v. Ferrero (Fla.App. 2005), 898 So.2d 1037

-- plan administrators were to restitution in form of equitable lien as "appropriate equitable relief" under Section 502(a)(3). Administrative Committee of Wal-Mart Assocs. Health & Welfare Plan v. Willard (C.A. 10, Kans. 2004), No. 04-3081

-- summary judgment for plaintiff physician was denied because of his failure to establish that he had submitted assignment of benefits to defendant no-fault insurer with its notice of claim. Siegel v. Progressive Cas. Ins. Co. (N.Y.City Ct. 2004), No. 036527/04

internet -- medical board properly posted on its Web site information pertaining to completion of physician's probation. Szold v. Medical Board of California (Cal.App. 2005), 25 Cal.Rptr.3d 665

jurisdiction -- medical malpractice plaintiff not shown that Michigan hospital performed act or omission that directly caused him injury in Ohio. Sessoms v. Goliver (Ohio App. 2004), 2004 -Ohio- 7077

jury -- malpractice plaintiffs waived challenge allowed peremptory challenges of jurors when they accepted jury. Schexnayder v. Mathews (La.App. 2005), No. 04-1421

licensure -- federal court lacked jurisdiction over physician's discrimination claims arising from license revocation. Guttman v. Khalsa (C.A. 10, N.M. 2005), 401 F.3d 1170

-- medical board properly posted on its Web site information pertaining to completion of physician's probation. Szold v. Medical Board of California (Cal.App. 2005), 25 Cal.Rptr.3d 665

-- osteopath's license proper revoked where he had had improper personal and romantic relationship with patient. Weinberg v. Board of Registration in Med. (Mass. 2005), 824 N.E.2d 38

limitations -- diagnostic examination of breast cancer patient did not constitute treatment for purpose of "continuous treatment doctrine." Friedrich v. Crystal Run Healthcare, LLP (N.Y.App.Div. 2005), 790 N.Y.S.2d 560

-- issue of whether medical malpractice limitations period could be tolled by unrepresented estate statute would be certified to Georgia Supreme Court. Simmons v. Sonyika (C.A. 11, Ga. 2004), No. 04-14180

-- medical malpractice action filed after failed tubal ligation procedure was timely. Rose v. Garza (Ohio App. 2004), 2004 -Ohio- 6960

Malpractice Act -- administrative failure by physician's office that led to delay in treatment was not covered by Medical Malpractice Act. Nash v. Brown (La.App. 2005), No. CW 04-751

malpractice actions -- based upon record as whole, it was not disputable that medical malpractice plaintiffs' notice of claim was submitted within 90 days of occurrence and was timely. Henderson v. Herman (N.J.App. 2004), No. A-0397-04T5

-- medical malpractice plaintiff not shown that Michigan hospital performed act or omission that directly caused him injury in Ohio. Sessoms v. Goliver (Ohio App. 2004), 2004 -Ohio- 7077

-- plaintiffs were not entitled to raise adverse inference form hospital's failure to call as witnesses nurses who had been present in emergency room. Hawkey v. Peirsel (Pa.Super. 2005), No. 975 WDA 2004

malpractice insurance -- CAT Fund director's regulations, which required health care providers to obtain tail or similar policy to maintain CAT Fund coverage were completely consistent with Act. Paternaster v. Lee (Pa. 2004), No. 154 MAP 2002

-- physician was not entitled to injunctive relief with respect to termination of his staff privileges where he had failed to maintain continuous insurance coverage. Shands at Lake Shore, Inc. v. Ferrero (Fla.App. 2005), 898 So.2d 1037

Medicaid -- nurse properly convicted for tampering with evidence and two counts of Medicaid fraud. State v. Corrai (Ohio App. 2005), No. 04AP-599

-- recipient was entitled to direct reimbursement for medical expenses incurred during retroactive-coverage period before she applied for Medicaid. Schott v. Olszewski (C.A. 6, Mich. 2005), No. 03-2490

medical centers -- remand required in suit concerning termination of pathologist's employment agreement for "just cause." Uintah Basin Medical Center v. Hardy (Utah App. 2005), 110 P.3d 168

medical records -- mere fact that hospital had lost medical records for five years before production did not lead to inference that they had been altered. Smith v. State (Tenn.App. 2005), No. E2004-0737-COA-R3-CV

medical review panels -- panel opinion properly allowed into evidence without testimony of panel members. Schexnayder v. Mathews (La.App. 2005), No. 04-1421

Medicare -- Secretary incorrectly denied reimbursement for services to certain low-income populations based on his interpretation of Medicare statute's Disproportionate Share Hospital calculation. Portland Adventist Medical Center v. Thompson (C.A. 9, Ore. 2005), 399 F.3d 1091

mental health -- evidence did not support involuntary commitment of patient to outpatient treatment. In re R.I. (Ia.App. 2005), No. 5-149 / 04-1203

-- evidence presented did not satisfy statutory requirement for clear and convincing evidence in support of order for temporary inpatient mental health services. In re State for the Best Interest & Protection of N.D. (Tex.App. 2004), No. 12-04-00186-CV

-- judgment temporarily committing patient suffering from schizophrenia to mental health facility for 90 days was appropriate. In re J.M. (Tex.App. 2005), No. 13-03-479-CV

-- rape victim's claim of failure of hospital to provide security could properly proceed without first resorting to arbitration. Afamefune v. Suburban Hospital, Inc. (Md. 2005), 870 A.2d 592

-- referee's questioning of witnesses did not violate methamphetamine abuser due process rights. In re of J.H. (Ia.App. 2005), No. 5-037 / 04-1046

notice of claim -- based upon record as whole, it was not disputable that medical malpractice plaintiffs' notice of claim was submitted within 90 days of occurrence and was timely. Henderson v. Herman (N.J.App. 2004), No. A-0397-04T5

nurses -- malpractice plaintiffs were not entitled to raise adverse inference form hospital's failure to call as witnesses nurses who had been present in emergency room. Hawkey v. Peirsel (Pa.Super. 2005), No. 975 WDA 2004

-- nurse properly convicted for tampering with evidence and two counts of Medicaid fraud. State v. Corrai (Ohio App. 2005), No. 04AP-599

-- nurse who was not pregnant at time health care provider decided not to rehire her was protected by Pregnancy Discrimination Act. Kocak v. Community Health Partners of Ohio, Inc. (C.A. 6, Ohio 2005), 400 F.3d 466

nursing homes -- trial court erred in denying nursing home's motion to compel arbitration in connection with medical malpractice action filed against it on behalf of resident who had fallen from her bed. In re Ledet (Tex.App. 2004), No. 04-04-00411-CV

osteopaths -- osteopath's license proper revoked where he had had improper personal and romantic relationship with patient. Weinberg v. Board of Registration in Med. (Mass. 2005), 824 N.E.2d 38

pathologists -- remand required in suit concerning termination of pathologist's employment agreement for "just cause." Uintah Basin Medical Center v. Hardy (Utah App. 2005), 110 P.3d 168

peer review -- physician's credentialing file was statutory privileged. Abels v. Ruf (Ohio App. 2005), No. 22265

perinatologists -- non-competition covenant was not enforceable in counties where hospital employer did not compete. WellSpan Health v. Bayliss (Pa.Super. 2005), No. 405 MDA 2004

pleadings -- good cause for late filing of required expert report was not shown by assertion that records had been sent to jailed physician and that communications were difficult. Cothren v. Thompson (Ill.App. 2005), 826 N.E.2d 534

-- trial court abused its discretion when it granted post-verdict motion to amend pleadings to allow statutory award of attorney fees. Hess v. Fernandez (Wis. 2005), No. 03-032703-0327

prisons -- award of $350,000 for conscious pain and suffering during deceased inmate's 13-day hospitalization was appropriate. Arias v. State (N.Y.Ct.Cl. 2005), No. 97942

privacy -- patient waived right to privacy by putting her health at issue in worker's compensation case and her return to work efforts. Mayer v. Huesner (Wash.App. 2005), 107 P.3d 152

privilege -- physician's credentialing file was statutory privileged. Abels v. Ruf (Ohio App. 2005), No. 22265

privileges -- hospital incident report which only went to risk management, which was not hospital committee, was not privileged. In re Bridges (Tex.App. 2005), No. 13-05-00062-CV

pulmonary internists -- pulmonary internist was qualified with respect to claims arising from improperly administration of intravenous dye injection. Hull v. Southern Illinois Hospital Services (Ill.App. 2005), No. 5-03-0800

punitive damages -- punitive damages were inappropriate in action alleging failure to timely diagnose pancreatic cancer. Brooking v. Polito (N.Y.App.Div. 2005), 791 N.Y.S.2d 686

rape -- rape victim's claim of failure of hospital to provide security could properly proceed without first resorting to arbitration. Afamefune v. Suburban Hospital, Inc. (Md. 2005), 870 A.2d 592

records -- medical board properly posted on its Web site information pertaining to completion of physician's probation. Szold v. Medical Board of California (Cal.App. 2005), 25 Cal.Rptr.3d 665

-- mere fact that hospital had lost medical records for five years before production did not lead to inference that they had been altered. Smith v. State (Tenn.App. 2005), No. E2004-0737-COA-R3-CV

-- patient established that physician negligently prescribed Oxycontin and failed to keep proper records. Vito v. North Med. Family Physicians, P.C., (N.Y.App.Div. 2005), No. CA 04-02238

-- physician immune from claims involving lack of informed consent and falsifying medical records. Botkin v. University of Cincinnati College of Med. (Ohio App. 2005), No. 04AP-228

-- provisions of workers compensation statute gave employer right to know patient's HIV status where he had sought treatment for work-related injury. Meld v. Barnett (Ky. 2005), 157 S.W.3d 596

-- surgeon's personnel and credentials file was privileged from discovery by medical malpractice plaintiffs. Troescher v. Grody (Pa.Super. 2005), No. 466 EDA 2004

security -- rape victim's claim of failure of hospital to provide security could properly proceed without first resorting to arbitration. Afamefune v. Suburban Hospital, Inc. (Md. 2005), 870 A.2d 592

sex discriminatio -- male doctor failed to show age and sex discrimination with respect to termination of his employment. Morris v. Emory Clinic, Inc. (C.A. 11, Ga. 2005), 402 F.3d 1076

sexual improprieties -- osteopath's license proper revoked where he had had improper personal and romantic relationship with patient. Weinberg v. Board of Registration in Med. (Mass. 2005), 824 N.E.2d 38

staff privileges -- physician was not entitled to injunctive relief with respect to termination of his staff privileges where he had failed to maintain continuous insurance coverage. Shands at Lake Shore, Inc. v. Ferrero (Fla.App. 2005), 898 So.2d 1037

standard of care -- issue of fact as to whether incorrect intubation of plaintiff's decedent constituted gross departure from standard of care. Kowal v. Deer Park Fire Dist. (N.Y.App.Div. 2004), No. 2004-00863

surgeons -- personnel and credentials file was privileged from discovery by medical malpractice plaintiffs. Troescher v. Grody (Pa.Super. 2005), No. 466 EDA 2004

-- surgeon qualified to testify regarding placement, creation, and post-operative care of stoma during surgery. Porter v. Sidor (Ohio App. 2005), No. 84756

Web sites -- medical board properly posted on its Web site information pertaining to completion of physician's probation. Szold v. Medical Board of California (Cal.App. 2005), 25 Cal.Rptr.3d 665

worker's compensation -- patient waived right to privacy by putting her health at issue in worker's compensation case and her return to work efforts. Mayer v. Huesner (Wash.App. 2005), 107 P.3d 152

workers compensation -- provisions of workers compensation statute gave employer right to know patient's HIV status where he had sought treatment for work-related injury. Meld v. Barnett (Ky. 2005), 157 S.W.3d 596

wrongful life -- South Carolina would not recognize common law cause of action for "wrongful life" brought by or on behalf of child born with severe congenital defects. Willis v. Wu (S.C. 2004), No. 25915



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