February 1, 2009 Recent Legal News




Peer Review


The following was printed in the December 15, 2008 Recent Legal News.  I have recently received the message that follows the original.

US v Brigden- UPDATED

Dr. Malcolm Brigden has agreed to pay $30,000 and to not rejoin Medicare.  He is a Canadian who while working at Wisconsin's Riverview Cancer Center generated bills for services never rendered.  The Clinic had already settled with the government for $165,000.

Dear Dr. Tobias
  I'm currently listed on your web site under fraud-unfortunately reporting in the US appears to be blatantly incorrect
  This represents the correct information as was obtained by legal retraction in Canada
  As you are a physician, I'm hoping you will be sympathetic and remove me from your web site
  I was salaried full-time I was in the United States , the errors were made by billing clerk who did the coding yet I was still charged
  I could've come back and disputed the whole thing but it will cost me over $100,000
  My attorney just said they in the whole thing would be settled- this was a negotiated no fault billing dispute no matter how it was reported in the press-in Canada it would not even have merited a headline in the paper
  The only reason I voluntarily agreed not to participate in Medicare was that had already been back in Canada for over five years

Again I am appealing to your sense of decency and reason-30k  when they claimed 80???
Also if you read the settlement I never generated any bills- I was salaried the whole time-the bills were generated by the hospital billing tech who miscoded my histories and was subsequently fired
The only reason they beat up on me was because they could
My attorney (presumably like yourself) said just pay the bill, to contest will cost you over 100k, it just is not worth it to you
In the US vs Canada, no one ever seems to mention that these are no fault settlements

The next email I received from Dr. Brigden was "ASSHOLE".  I believe this tells the whole story of this "physician".

The following day I received yet another email from the "good doctor" stating  "Well the truth will set you free was what they posted over the gates at a number of concentration camps. I guess it depends on whom your dealing with to start off with.  As a lawyer and a doctor one would hope for some decency."  The same would hold true for the  writer.

The next email stated  

"Your website continues to be incorrect and if your really are an md and ethical person you know it  

If you google my name you will see all of the help I have provided the general American public over the years in relation to preventing post splenectomy infections, proper use of the sed rate etc  

These articles were provided for free thru reputable journals like the American family physician-I have not tried to make a living from others misfortunes  

This is  how I am repaid, being slandered online in another country-no wonder Americans try to pretend they are Canadians when traveling abroad  

Again for the record, I did not generate any billings, I was fully salaried all the time I was there, all of the billing and coding was done by a Riverview clerk who was fired shortly thereafter-the hospital admitted it was responsible, I trusted them to know what they were doing re billing-big mistake  

As a salaried individual there was absolutely no incentive for me to have any  change in the billings-this would not even have made the press in Canada  


Next came an article entitled "Detection, Education and Management of the Asplenic or Hyposplenic Patient."  The doctor does not realize that the articles or the good in the past does not erase the settlement in the US.  If one does not defend oneself it may be cheaper but the reputation is expensive.

I do not change the original stories but I do print most letters without changes.

US v SouthernCare

SouthernCare, An Alabama hospice has agreed to pay $34.7 million for submitting false claims for people who did not qualify for hospice care.  This was a whistleblower case.  The two whistleblowers will split $4.9 million.

Minnesota v Austen
Guilty Plea

Kim Joann Austen who worked at the DHS created a false ID and billed Medicaid for over $1 million.  She falsified 23 claims but pled guilty to one count of healthcare fraud. 

US v Lopez

Yet another Miami, Florida, DME person is going away for submitting false bills to Medicare.  Alfredo F. Lopez owned multiple DME companies in Miami that submitted $16 million in false claims for items never provided.  

Florida v Espinal
Fla Ct App

The Florida Court of Appeal assured that fewer physicians would take Medicaid patients by ruling that Dr. Espinal has to repay to the state overpayments that were the fault of the state.  An agency had audited the solo practice and found the solo pediatrician had not abided by all the unintelligible rules set forth by the state so was ineligible to keep the money sent to him.  Those in Florida who continue to take Medicaid should not.    

US v Pfizer

Pfizer announced in the small print when it acquired Wyeth that it had settled a federal charge that it marketed Bextra for off label use.  The company paid $2.3 Billion for the now off the market drug illegal marketing.  

US (Kosenske) v Carlisle HMA
3rd Circ

The 3rd Circ reversed a summary judgment for the hospital that it violated the Stark law with it's arrangement with the anesthesiologists.  The dispute was over pain management services and the lack of the hospital making the anesthesiologists pay for the lease of the outpatient space or the personnel supplied by the hospital.  The anesthesiologist were not the problem but the pain physicians who were in a position to refer to the hospital were.

US v Awad
9th Circuit

Dr. Aziz Awad was convicted of Medicare fraud for illegal billing and money laundering.  He vastly surpassed other California physicians in billing for respiratory treatments.  The Circuit let stand the 180 month prison sentence.        

Town and Country Hospital v Memorial Hermann Hospital

Town and Country hospital accused Herrmann Hospital of antitrust in not allowing insurance contracts to be given to Town and Country.  In the Houston, Texas, area.  T&C Hospital did get a contract with Cigna and Hermann threatened to terminate its contract with Cigna and got a lucrative contract by Cigna.  The same thing happened with Aetna.  T&C Hospital eventually had to close due to the lack of the contracts.  Hermann is enjoined for 5 years from doing any more illegal acts and pay a fine of $700,000 to the state.  The hospital actually did well on this since it closed a competitor and got higher contracts for only $700,000.         Top


NY v Nurses
NY Appellate Ct

The New York Appellate Court exonerated ten Filipino nurses and the attorney who advised them.  They had left their employ with no notice but after their shift at Sentosa Healthcare facility in Smithtown over a dispute regarding their duties, pay and scheduling.  The local DA who was obviously going for a higher position had them on trial for patient abandonment.  The higher court said slavery went out many years ago and threw out all the charges.  The DA who was rebuked by the court has not decided whether of not he wants to appeal the ruling to the state Supreme Court and be further embarrassed.   

Wisconsin v Neumann

Mr. and Mrs. Neumann believed in prayer and prayed for help when their 11 year old daughter became ill.  As she continued to deteriorate they prayed more but did not bring the girl to a physician.  The girl died from juvenile diabetes.  The judge stated the parents should stand trial and not be allowed to hide behind religious freedom when it affected not them but their child.  The case will turn on whether or not the parents knew the seriousness of the child's condition.  The parents face 25 years in prison.   Top


Minnesota v Allina

The state attorney general has filed suit against the health system for usury.  The state caps medical interest rates at 8% but Allina charged 18% for up to $5000 and $12% for debts above this to $10,000.  Allina had recently reduced its interest rates to the allowed 8% but the state wants a refund to those who paid more plus a $25,000 fine per incident.  

California v Blue Shield

A LA judge has agreed with the LA City Attorney who has filed a class action suit against the insurer for its illegal and immoral rescissions.  Blue Cross had tried an end run by sending letters to all those they screwed offering $1000 if they agree not to sue them.  They are real snakes. 

California ER Docs v California

Several ER groups filed a class action law suit against the state for poor pay via MediCal (Medicaid) causing emergency rooms to close and poor care for its citizens. 

Patients v Scripps Medical

 A class action law suit was filed against Scripps and its ED physicians for balance billing patients seen in the ED with HMO insurance that is not accepted by the hospital or its physicians.  This is from the recent California Supreme Court verdict not allowing balance billing.  There should be many more of these suits by bottom swimming attorneys.

Patients v Advocate Health

The Chicago organization agreed to provide charity to those within 400% of the poverty level.  They will go back as far as November 2000 and refund monies.  There is no mention in the article how much money will be siphoned off by the attorneys. 

Watanabe v Blue  Shield
CA Ct App

Watanabe was a member of Blue Shield HMO via an IPA Good Samaritan Medical Practice Plan.  The patient complained of dizziness and went to her physician who sent her to an ENT, reason?.  Also she was sent to an optometrist for blurred vision. She had to pay $65 for this visit since she was told it wasn't covered.  Eventually the symptoms increased and the PCP finally asked for approval for a brain CT.  It was approved while she was on a trip and when she returned she had the test which showed a non-cancerous cyst.  This was removed and she did well.  She sued Blue Shield for the liability of the IPA which had previously settled for $150,000.  The courts said no.  Blue Shield is only responsible for its errors and owes the patient $65 for the optometrist visit.  Blue Shield is not liable for the med mal of the IPA.

Kingsbrook Hospital v Allstate
NY Sup Appellate 

Kingsbrook Jewish Hospital treated an auto accident patient.  They submitted the bill to the auto accident insurer.  The insurer refused to pay since they contended that some of the treatment did not relate to the accident.  The insurer lost because the deciphering of the hospital codes by the insurer's attorney is not sufficient.  The information requires an expert and as everyone knows attorneys are not experts.    

Providers v California

A coalition of providers and beneficiaries sued the state over a proposed 5% decrease in Medicaid payments.  The judge ruled that the state had the burden to prove that the cuts would not injure patients and failed to do so.  This is the second time these cuts have failed.  The first one was for a 10% cut.     Top

Peer Review

Poliner v Presbyterian Hospital
US Supreme Court

In a case closely watched by all involved in peer review, the United States Supreme Court refused to hear the Poliner case thereby allowing the judgment of the 5th Circuit denying any damages to Poliner to stand.  The 5th Circ stated correctly that HCQIA does not allow monetary damages for illegal and immoral peer review. 

Smigaj v Memorial Hospital

Dr. Diana Smigaj, an OB in Yakima, Washington, has filed suit against her hospital.  She is smart by suing for an injunction and not damages except for defamation and violation of the Consumer Protection Act.  The hospital is accused of unsafe practices. Dr. Smigij's former associate has stated that the hospital is run by the good old boys who do not want competition.  This OB had 300 of his GYN cases reviewed and was suspended for a short time until a peer review committee overturned the biased determination. Dr. Smigij was hired to become the head of the perinatologist unit at the hospital.  She was immediately challenged by another OB who backed off after an antitrust attorney wrote threatening the physician. Her baggage has been since her recruitment in 1999.  The same physician and competitor has been behind the constant problems.  In 2008, she was suspended by an ad hoc committee that was made up of her competitors.  The suspension was overturned by the hospital executive committee after the charts were reviewed by out of town specialists. This was a front page story in the Yakima newspaper.

The following was printed in the 1/15/09 Legal News.  I received the email that follows this article recently.

Cole v St. James Healthcare
Montana Supreme Ct.

The high court agreed to the injunction filed by Dr. Cole against the hospital to put him back on staff and not taking any further action against Dr. Cole.  The hospital had reduced his staff status from active to consulting without notice or hearing.  The hospital then illegally hired an attorney to investigate the physician instead of the medical staff doing the investigation as per the bylaws.  The physician refused to cooperate with the illegally appointed attorney and filed the suit.  The court stated that the hospital did not give the bylaws required three month notice of a reduction in staff status, the physician had an excellent chance of winning the breach of contract suit against the hospital. This hospital needs a new CEO and a new attorney who is able to read bylaws.   


I'm Cole. Been reading your blog for the link for some time.

You should know I did not oppose having an investigation performed through the medical staff bylaws at the injunction hearing...we specifically said that I did not object to following the bylaws. The injunction just told hospital its board of directors could not do it.  I had nothing to hide...there is, as you might suspect, much more to this case. 

Actually, the hospital did fire the old CEO and the old attorney handling this case.  It's been quite a ride.

I'm still here in Butte, practicing radiology.  The hospital has gone in two years from being a moneymaker to losing 1-1.5 million a month.

take home lesson for me...we have fewer friends than we think.

Mercer County
Kansas Supreme Court

Friedman had his medical license suspended after he had already moved to another state and was practicing.  He sued for an injunction and lost since he did not fulfill all the administrative hoops required prior to filing suit.  The high court agreed that one must jump through the hoops prior to filing suit.  

Talwar v Mercer County
ND Ohio

 Talwar applied for privileges at the hospital and was refused since there were omissions in his application.  Stupidly, he sued for discrimination instead of fixing the application.  The court rightly said he and not the hospital has the duty to complete the application.  Of course, he lost.

Rivera v Smith

The physician sued the hospital and other physicians for requiring him to undergo a psychiatric exam an have no further contact with a nurse after he harassed a nurse with whom he had had a prior relationship. He did not comply with either requirement and was fired.  He sued under the ADA and of course lost.  I think the physicians are getting dumber and attorneys love dumb doctors with money.      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.