December 15, 2009 Recent Legal News

Peer Review




Peer Review

Feller v Miriam Hosp
Rhode Island Superior Ct.

This case serves as a warning to those physicians and their attorneys who agree to give up some of their rights.  In this case Dr. Feller had some disciplinary problems in 2002.  He agreed at that time to monitoring by the peer review panel and if future adverse monitoring came about it could institute action including termination of privileges without a formal hearing.  Guess what, that's what happened in 2007.  The physician sued and the court stated that the peer review body was protected under HCQIA and that the physician voluntarily gave up his federal rights of due procedure.         

Unnamed Physician v Hoag Hospital
Ca Ct App

This is a great case to show malice of a hospital.  The physician, a neurosurgeon, was investigated for excessive operating times and complications.  The appointed ad hoc committee investigated and recommended no action except continued working with neurosurgeons on cranial and spinal surgeries but called him "unsafely overconfident" since he had only been out of residency for a short time.  The MEC rejected the report and instead required the doing of surgery with another neurosurgeon for six months.  The person would be involved with the pre and post operative care as well as assisting in the surgery.  The MEC gave the physician JRC hearing.  While the usual pre hearing wrangling was in progress the surgeon was accepted in a previously applied for fellowship in Spine surgery and stated he was considering a fellowship in Cranial surgery as well.  The MEC upon learning of of the physician taking the fellowships decided to give him a letter of censure and place him on indefinite probation conditioned on completion  of the fellowships.  The MEC also was to write to the physician to request a leave of absence.  The indefinite probation went into effect the day the MEC passed the motion but the physician was not informed for two weeks.  He was told that this was not a restriction on his privileges and he had no hearing rights.  The physician then sued for multiple violations including its own bylaws.  He wanted money and rescinding of the censure letter.  The hospital did not respond but instead filed a demurrer and said this was a SLAPP suit.  The lower court denied the demurrer and said no SLAPP suit.  Hoag appealed and the Appellate Court reversed so the lower court could see if there was any way the physician could win.  The lower court said yes against the hospital but not the individuals and they were dismissed.  The lower court then granted the physician a writ of mandate against the hospital for no notice and hearing prior to action on his privileges.  The hospital appealed and the appellate court ruled again for the physician and give him his costs. This is costing the hospital much more than the now required hearing would have cost.        Top


US v Kaiser Permanente

California Kaiser has agreed to pay $3.75 million for submitting bills for treatment done by attending physicians when the treatment was done by unsupervised residents. Kaiser states this was a record keeping issue.  This occurred in the Southern California area.

AMA v UnitedHealth

The judge has approved a $350 million settlement by UnitedHealth for underpaying physicians for out of network care .  United used the disgraced Ingenix payment schedule that United developed.  This is the first step in finalizing the settlement. United had paid $50 million to New York for the same thing.

US v Mercy Hosp. Sioux City

The Iowa hospital agreed to pay $400,000 for allegedly overcharging the feds.  The hospital was accused of overcharging for heart patients in the "outlier" program.  The hospital denied the accusation but paid not only the fine but also about $1 million in attorney fees.

US v Patel

The feds have formally intervened in a civil Qui Tam case against a cardiologist, Mehmood Patel.  He was criminally  convicted of 51 counts of fraud for performing unnecessary medical procedures. The whistleblower was a fellow cardiologist, Christopher Mallavarapu. 

US v Saks
USDC Central CA

Dr. Lawrence Saks, a plastic surgeon, was tried on 16 counts of fraud.  He was accused of billing insurance companies for procedures he may or may not have performed.  He did cosmetic procedures and then billed for such things as hernia repairs which the patient authorized but did not tell the insurer that the main surgery was cosmetic.  The jury ruled a stalemate after an expert testified that it is legitimate to bill insurers for billable procedures.  There will probably be a retrial since the jury came back 11-1 for a guilty verdict.  The physician is also being tried for disability insurance fraud.  He is accused of collecting disability payments while continuing to work.  Dr. Saks had his California license revoked last year due to a patient death.  He also a past tax evasion conviction and multiple med mal claims against him. 

US v Martinez
6th Circ

Dr. Jorge Martinez, an anesthesiologist pain management specialist in Parma, Ohio, was convicted in the lower court of healthcare fraud which was upheld by the 6th Circuit. The FBI had his nurses audio and video tape his work and this showed no physical exams and cursory pain injections.  The government stated that he did substandard care since he saw more patients than his peers.  The government's expert stated the treatments were not medically necessary.  There were also two patient deaths due to continuation of narcotics in addicted patients.  The physician was sentenced to life imprisonment and ordered to pay $14 million in restitution.         Top


Magnano v Physician
To Be Filed

A former Miss Argentina, now age 38, who was obsessed with plastic surgery had buttocks implants and died post operatively due to an embolism.  She leaves behind a husband and two small children.   

People v Epic Hotel
To Be Filed

In the past three months three people who have stayed at the Miami hotel have come down with Legionnaire's Disease.  One went on a cruise after the stay and died.  The hotel needs to close until the cause is found and taken care of.       Top


Hospitals v Massachusetts

Six disproportionate share hospitals have filed suit against the Republic for unpaid health claims.  The hospitals are challenging the low payments they are paid to take care of the patients while the big Boston hospitals are paid significantly more.  A prior suit by Boston Hospital alleged the same.   

 Cookeville Hosp v Cardiac Anesthesia Service
Tenn Ct App    

In a fascinating case that should make all hospitals and contracted medical groups sit up and take notice, the hospital let go for breach of contract the medical group.  The medical group also sued for breach of contract.  The medical group was supposed to bill and collect for its services and turn all the money less 20% for billing expenses to the hospital.  The hospital would then pay the medical group a fixed amount per month for providing cardiac anesthesia.  The Tennessee Court of Appeal decided that the payment to the hospital of the fees collected less the collections percentage was fee splitting and illegal.  Since it was illegal the contract was void and the hospital owed nothing to the medical group.  

Fleming v Yuma Hosp
9th Circ

Dr. Fleming, an independent contractor, had sickle cell disease and was fired from the hospital since it could not accommodate his schedules from his illness.  The liberal court decided that even though Dr. Fleming was not an employee he still could sue under the Rehabilitation Act.  The court acknowledged a split in the circuits and went with the liberal interpretation of any otherwise qualified individual.       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.