December 1, 2003 Recent Legal News

Fraud and Abuse






Peer Review


Fraud and Abuse

Fla. v Tampa General Hosp.

Tampa General has agreed to pay $4 million to Florida for a 99% error rate in billing for nonroutine services.  The hospital blames it on a failure to update their computers.

US v Tri-State Radiol.

In a whistleblower case, a radiologist at a competing hospital in Cumberland, Maryland, stated that a radiologist at Sacred Heart Hospital was performing carotid artery stenting without Medicare approval and the hospital knew there was no Medicare approval.  This costs the offending parties $1.6 million, a nice sum, but not enough for the whistleblower to retire on.  

FTC v Yakima Surgeons

The FTC and 90% of the general surgeons in Yakima, Washington, entered into a consent decree.  The surgeons had formed a for profit corporation too negotiate with insurers.  It looked like they were all part of the same corporation but in fact each still controlled their own practice.   

US v Univ. of Illinois

The University of Illinois has settled a case by the feds for doing liver transplants on ineligible people.  The people had bad livers but did not meet the national transplant criteria.  The University paid over $2 million.  The physician transplant surgeon who blew the whistle got 25% of the total, a nice sum but not enough to retire on.


Gainesville Health v Weston
Fl. Dist. Ct. App.

The court ruled that an arbitration agreement within an admissions agreement at a nursing home was adequate to derail a suit for wrongful death.  The agreement had been signed by the patient's daughter with a power of attorney.  She later stated she had not read the agreement and that no one had explained it to her. The daughter agreed that she had an opportunity to read the documents and that they did not need to be signed immediately.  The trial court for whatever reason sided with the plaintiff.  The Appeal court remanded to the trial court based on the fact that the document was not unconscionable. The daughter failed to ask any questions she may have had and therefore she had a meaningful choice.   

Connolly v Aetna

Connolly receive prenatal care via Aetna HMO, an ERISA plan.  Her physicians requested Aetna for medical reasons to approve a uterine home monitor.  Aetna refused and instead approved a company to come in to teach the patient how to palpate her own uterus and feel contractions.  At 29 weeks she went into unstoppable labor and one of her twins dies and the other is brain damaged.  She sued in state court for negligence and Aetna removed the case to federal court under ERISA.  The district court stated it is negligence and sent it back to state court.  Following discovery, Aetna again attempted to remove it to Federal court and again it was remanded back. The rationale was it was a mixed case and that the negligence claim overrode the decision claim.  

Hensley v Sconkin
Tenn. Ct. App.

Hensley had TMJ problems and needed to undergo a hysterectomy.  She was informed by her oral surgeon to request a nasal intubation.  She did request it from Sconkin, the anesthesiologist who stated he would decide what type of intubation to use.  He decided on an oral intubation causing the patient increased TMJ paid.  The patient sued for battery and lack of informed consent.  The lower court granted summary judgment for the defendant on the basis of a two part test; (1) the patient was aware the doctor was going to perform a procedure and (2) the patient authorized the procedure.  Here the lower court ruled the patient knew and she signed the consent.  The Appeals court stated that the patient was aware but the second prong was not satisfied since she had told multiple people she did not want oral intubation and the consent form was no longer in the record.  Case to trial.    

Dugan v Mobile Med Testing
Conn. Supreme Ct.

Dugan underwent a job physical for his job as a firefighter in NY.  The exam was in NY.  During the exam Dugan had an EKG and was told when he asked by the supervising physician that the EKG was fine.  One month later Dugan had an MI and one week after the MI received a letter from the testing company stating the EKG was abnormal and he should seek follow-up.  He sued the testing company in Connecticut, where he lived.  The case got to the Supreme Court who ruled that New York law should apply due to the totality of the circumstances.  They also allowed the case to go to trial since the statement regarding the EKG constituted treatment or advice, which in New York puts the physician as a treating and not just an examining physician.  The court ruled that the statement about the EKG led the plaintiff to decide not to seek further treatment, which resulted in his heart attack.  

Bragg v Valdez
Cal. Ct. App.

Lee was involuntarily committed to the medical center as a danger to himself or others.  He was evaluated during his 72 hour involuntary hold and committed for an additional 14 days.  However, after only one of the 14 additional days Lee was discharged due to lack of insurance.  Several weeks later he killed Bragg and then himself.  Bragg's family sued the psychiatrist Valdez and the center for releasing Lee and not warning him to continue to take medication or warning the community.  The trial court issued a summary judgment for the defendants stating they had no duty to the plaintiff under Tarasoff and the physician was immune from liability under Civil Code 43.92.  The Court of Appeal overturned stating the suit was not for failure to warn but for sending Lee out too soon and for a reason that does not confer immunity to the physicians.

Atral v Allen
Cal Ct. Appeal

Atral had surgery May 1998 with Allen as the anesthesiologist.  Following the surgery Atral continued to have severe throat pain.  She saw several specialists over the next 18 months and finally had surgery where a fracture of the thyroid cartilage.  She sued Allen who stated the statute of limitations had run since Atral had answered a questionnaire that she suspected that there was an injury during the intubation.  The trial court ruled that the statute had run since the patient's questionnaire was over one year following the intubation.  The Court of Appeal overruled the trial court stating the statute did not begin to run until the surgery that found the cause.  Merely suspecting the cause of an injury is not enough to bring suit without any objective basis for believing malpractice had occurred.  To Trial.   Top


US v Chase
9th Circ

In a case involving the right of a psychiatrist to warn people who a patient has specifically threatened to kill was justified.  This applied the Tarasoff v Reagents of Univ. of Calif. case on 1976.  The patient was charged and convicted of threatening to murder federal law enforcement officers both those that were attempting to arrest him and those which he told the psychiatrist about.  The court also stated that the psychiatrist should not have been allowed to testify against the patient due to privilege, but since there was testimony it was harmless error.  In Oregon and in federal law there are psychiatrist- patient privileges to testimony.     

Anonymous v Bureau of Prof'l Med Conduct
NY Supreme Ct. App. Div.

A GP had charges leveled against him by the NY Dept. of Health for exceeding the scope of his license and failure to maintain a medical record.  A Board hearing committee cleared the physician of the former and reprimanded him for the second.  The Dept. then published on its web site both charges.  The GP requested that charges not substantiated be removed.  The Dept. refused.  The GP sued and won.  The Appellate Division stated that all unjustified charges and accusations are confidential. The court stated the only thing that the law allows to be published is annulment, suspension, or revocation of a license. Top


Huskey v Trujillo
Fed Circ.

Huskey, an OR nurse, sued in federal court for on-call money for time waiting but not working.  She was while being on call required to respond within five minutes and be at the hospital within thirty minutes.  The lower court tossed the case and the higher court agreed.  They state that the hospital never required her to remain at her "station".  Under FEPA a home may be a station but only when the home is designated as a duty station and when her whereabouts is narrowly limited and the activities are substantially restricted.  Here, the home was never a station and she was given a beeper so she could move around.        Top  


Humphreys v Clinic for Women
Ind. Supreme Court

The high court in a challenge to a law that Medicaid funds will only be used to pay for abortions of women where it is necessary to save the mother's life or when the pregnancy is caused by rape or incest determined the law is valid but the application of the law is unconstitutional.  They stated that Medicaid must also pay if the abortion is for a pregnancy creates a serious or substantial risk of irreversible impairment of a major bodily function.        Top


Favor v Horne
NY Civil Ct

Medical records are now only to be given to both parties in a civil suit if the party seeking the records requests authorization from the person whose medical records are requested.  If the authorization is not given, the court will need to issue an order.  This is to take the provider out of the middle of disputes.  It  is part of a new amendment to the New York Privacy law.        Top

Peer Review

Ardisana v Northwest Comm. Hosp.
Ill. Ct. App.

Ardisana was injured during surgery at the hospital.  He requested in discovery the production of documents relating to the peer review process at the hospital.  Northwest objected and stated the material of the surgical and anesthesia quality audit committees were privileged.  The trial court ruled the information was discoverable since Northwest did not divulge when the beginning and end of the peer review process ran.  Northwest refused to give up the documents and was held in contempt.  Northwest appealed.  The Court of Appeal overturned the trial court.  It agreed that the final result of the peer review process is not privileged but the word "result" should be construed narrowly. Recommendations are not part of results and are not discoverable. The appeals court stated the trial court was wrong for not requesting the temporal relationships in a more timely manner.  They also reviewed the documents and found them to be privileged.  To trial.

D'Arrigo v South Jersey Hosp
NJ Super. Ct.

Following the removal of his privileges by the hospital medical exec committee, D'Arrigo went through a fair hearing and had all his privileges reinstated.  The fair hearing was held two years after the suspension of his privileges.  He the sued for the monetary damages sustained while suspended.  He lost.  The court stated that the remedy is limited to assurance of a fair proceeding in determining the decisions, not monetary damages.         Top       


The Feds took it in the ear again.  A US District Judge ruled in a trial in LA that the people that ran a Cannabis Center should receive the minimum sentence possible.  One year probation and no jail time. They also got 250 hours of community service.  He stated that "to allocate the resources of the DEA and the US Attorney's office in this case baffles me, disturbs me."        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.