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Week in Review

by Kroger Burrus on December 23rd, 2012


In re Kenneth Higby, MD
After a physician retained by the defense filed a complaint with the American College of Obstetrics and Gynecology alleging that the plaintiff’s expert had made false and misleading statements in his written reports, the physician retained by the plaintiff filed a defamation suit. During his deposition the defense expert refused to answer questions concerning his complaint to ACOG’s Grievance Committee, maintaining that the information was protected under the medical peer review privilege. The trial court ruled that the privilege did not apply. The Houston appellate court held that the state’s peer review privilege extended to ACOG’s Grievance Committee.

Memorial Hermann Surgery Center Texas Medical Center v. Smith
A laser eye surgery patient filed suit alleging that the defendant hospital’s nurses failed to properly monitor equipment. The defense sought dismissal on the basis that the initial expert report did not expressly name the surgery center—a subsidiary of the hospital system—where the procedure was performed. The Houston appellate court held that the report’s failure to name the surgery center as a distinct corporate entity was a curable defect, noting that references to the hospital system implicated the surgery center. Although defective, the report represented a good faith effort and the trial court correctly denied the motion to dismiss.

Texarkana Nursing & Healthcare Center v. Susan Lyle
A nursing home patient who claimed she was assaulted by an employee filed suit against the home, alleging that it was vicariously liable for the LVN’s conduct and directly liable for failure to provide a safe environment. After the trial court denied the home’s motion to dismiss, the Texarkana appellate court found that the direct liability claim was defective but authorized a 30-day amendment period. The report should have stated what the home should have done to provide a safer environment. The court dismissed the vicarious liability claim because the report did not address how the staff had breached the standard of care or contributed to the patient’s injury.

Frey v. Fannin County
A county jail detainee’s medical negligence claim against the county and jail doctor was dismissed on the basis that he had not exhausted his administrative remedies prior to filing suit. The Texarkana appellate court held that the statute cited to warrant dismissal applies to the Texas Department of Criminal Justice’s inmates and was not applicable to the claim against the county and jail doctor.

Simmons v. Pamatmat
A patient filed suit against a physician and his employer after a guidewire broke and lodged inside the patient’s body during a thrombectomy. The physician challenged the expert report and the trial court dismissed the case after the plaintiff failed to file a response. The Tyler appellate court upheld the dismissal, noting that under local court rules a party’s failure to respond to a motion is viewed as a lack of opposition. The court noted that the patient also failed to request a 30-day extension to amend the expert report.

United States of America v. Sharma
The owners of a pain management and arthritis clinic pled guilty to health care fraud charges related to a scheme in which they charged for injections that were never performed and fraudulently upcoded some procedures that were performed. The couple appealed the court’s order to pay $43 million in restitution on the basis that the court’s total included both fraudulent and legitimate charges reported by the victim companies. The 5th Circuit held the restitution order was excessive and needed to exclude any legitimate charges supported by the existing record. The court rejected the defendants’ request for a credit representing the amount they would have been paid for procedures that were performed but fraudulently upcoded. The defendants did not prove that these procedures were medically necessary.


Medicare Launches Quality-based Reimbursement Program
Starting January Medicare will begin issuing payments that include bonuses or penalties based on a nationwide comparison of how closely hospitals hewed to the standard of care. Patient ratings will also factor into the agency’s quality of care assessments.

Surgeons Leery of Patients’ Requests to Limit Post-Op Treatment
About 60% of surgeons surveyed nationwide said they would sometimes or always refuse to operate on patients who pre-emptively limit life-supporting treatments in the event of post-operative complications.

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