February 1, 2013 Recent Legal News



Peer Review and Employment


Malpractice and EMTALA




US v WakeMed

WakeMed is attempting to settle with the feds charges of both civil and criminal fraud.  They treated patients in their outpatient cardiac center but billed as if they were hospitalized.  They also lied on the physician orders to cover up their fraud.  They have already agreed to pay $6.8 million on the civil charges plus $1.2 million in reimbursement.  The CEO opened his mouth without thinking nor having legal advice stating that their was no criminal actions by WakeMed.  This he has had to retract since settlement on the criminal charges will require the statement that criminal actions did take place.  

After the above was written, the judge refused the plea and now the government must defend the hospital.  Since no crimal charges had actually been filed and only threatened, the judge said to either file or dismiss.  The no nonsense judge said that all others who commit fraud are put in jail and ineligible for Medicare or Medicaid funds.  He says if the act was criminal the same should be true for the too big to fail corporations.

US v Behnan

Podiatrist Richard Behnan of Fenton, Michigan, was sentenced to 55 months in prison plus pay restitution of $1,427,000 to Medicare and an additional $196,000 to Blue Cross.  He billed for nail avulsions when he actually did toe nail clipping, a non covered service.

US v Ebrahimzadeh (Abrahams)

Dr. Pezhman Ebrahimzadeh who uses the name Pez Abrahams owned a clinic in the California Fernando Valley.  He cheated the government by billing for $7.5 million for procedures he never did and for patients he never saw.  He received $3 million on these claims.  He pled guilty and will be sentenced later.

US v Cooper Hospital

Cooper Hospital in as usual New Jersey agreed to pay a fine of $12.6 million to settle a claim for paying physicians for referrals.  Of course they admitted no guilt but everyone would pay that much to avoid a law suit.

San Francisco v Restaurants

The San Francisco Business Times reports that San Francisco is going after the restaurants that collect surcharges on their bills to pay for the city's health insurance mandate and do not use the money to pay for the tax.  They keep the surcharges for extra profit or so says the city.  The restaurants say this is only a problem of filling out a form in the wrong way since the city never explained how to do it.          Top


Oyortey v Medical Bd. Ohio
Ohio Ct. App

In attempting to help a fellow physician this physician has told he falsified information but took no action against his license.  He sued and then appealed and lost all.  The facts were that the plaintiff met a former schoolmate at several social engagements and then vouched for him when he went for his medical license.  The problem was the former schoolmate had two other state licenses revoked and the plaintiff never knew anything about the schoolmate except that they went to school together.  He should never have recommended his schoolmate without knowing more about him and then when the facts came out he should have just left well enough alone and stayed out of the courts.  

Zawaideh v Nebraska Medical Board
Nebraska Supreme Ct.

The physician was accused of quality problems in one patient and refused the settlement offers from the state since they required him to agree to a quality issue.  He finally agreed with a settlement that he gave assurance of compliance not to practice OB.  He had already given up OB so he agreed.  He was told by the state that this would not be a disciplinary action.  Washington found out and dinged his license and reported him to the NPDB.  This resulted in his losing his Board certification.  He sued alleging false representation.  He lost in the lower court due to sovereign immunity.  He lost in the Supreme Court for other made up reasons but still lost.        Top

Peer Review and Employment

Pierson v Orland Health
US Supreme Court

The high court refused to hear a challenge to the 11th Circuit ruling that upheld a lower court's decision in a hospital's favor against a terminated physician.  The 11th found that the plaintiff either lacked merit or was barred by HCQIA.  The hospital had stated that it would restore him to the call and trauma panels if he would agree to the rules that apply to all the orthopedic surgeons.  He refused and moved out of state therefore generating a NPDB report.  A very dumb orthopod.

Rosenberg v Advocate Health
Ill Ct App

A cardiologist had his cath privileges revoked after a peer review hearing.  He then sued for multiple breach of the bylaws which the courts dismissed one by one.  This is another of many many examples of the futility and waste of money and energy in challenging a lost peer review hearing.  

Mercy Hospital Iowa City v Goodner
Iowa App Ct

Here's a case where the appeal was justified as it was not a discipline case, but a disability one.  A disabled physician "caught" a virus from a patient while working as an employee of the hospital.  She filed for Worker Disability and care and the hospital agreed.  Later, the hospital believed the physician may not have contracted the disease from a patient and attempted to withdraw the acceptance of liability.  The court stated the hospital was estopped from the denial of liability.  The court also stated that he physician was permanently disabled and could not retrain for another position due to fatigue.  However, the court stated that the surgery performed on the physician was not covered as it had never been authorized.  

Baugh v Columbia Heart Clinic
SC Ct App

Two cardiologists left the clinic and opened a practice three football fields away from their former practice.  The sued for a determination that the non-compete clauses were void.  They won in the lower court and were awarded damages.  These were taken away and the whole case lost in the court of appeals as the non-compete was deemed reasonable.   

Prpa v Wheaton Franciscan 
Wisc Ct App

 The employed physician had his salary adjusted in the middle of a year due to the mistaken information given a consultant.  At the end of the year the problem was found and he was told he received $300,000 too much.  They were going to dock his salary by that much the following year.  Instead he quit and sued for his money, declaration that the restrictive covenants were void and for attorney fees. He lost on two of the three arms of the restrictive covenants but won $100,000 in salary.  Since he won 2/3 of the case he was awarded 2/3 of his costs and attorney fees.     Top


Sebelius v Auburn Regional Med Ctr
United States Supreme Court

The high court has settled differences in the appellate courts on the issue of whether or not hospital claims may be made to Medicare after the statute of limitations has expired even if HHS was the problem, as they usually are.  The Court sided with HHS and stated that if the three years are up the hospitals may not put in a claim.  

Patients v Exeter Hospital

The case is moving forward.  The plaintiff attorneys have agreed as has the hospital to have only one deposition of each person and all will depose at the same time.  They expect the trials to start in about one year if not settled sooner.

Kennedy v Northern Westchester Hospital

The son of Robert Kennedy, Jr. was involved in a scuffle with two nurses at the hospital when last January he attempted to take his newborn son outside for fresh air.  He was tried and acquitted of charges of child endangerment and harassment.  He is now suing the nurses who were protecting his newborn son from his acts as well as their employer, the hospital.  As part of the suit he is alleging HIPAA violations where his wife's information was broadcast on television.  He may be an ass but this may have some validity.

Healthcare Foundation for Kansas City v HCA
DC Missouri

HCA purchased hospitals in the Kansa City are from another non profit hospital for $1.125 Billion and promised to pay $300 million for capitol improvements in the first two years and an addition $125 million in the next three years.  They also agreed to maintain the same level of charity care for the next ten years.  The for profit did not pay the required money and the judge ordered them to pay $162 million for the promised improvements.  HCA countered with they had built two new hospitals and that should count as the money required.  The court did not agree.  The court also said they need to appoint an independent person to see how much charity care was actually done by the HCA hospitals.  The money will go to the Foundation for charitable projects and more may be on the way depending on the forensic accountant.        Top

Malpractice and EMTALA

Patients v Olean Hospital
To Be Filed

Olean Hospital in New York is the second hospital in the area with potential problems reusing insulin pens.  The VA hospital had a similar problem and is currently under Congressional investigation for their problems.  The VA had 700 potential patient exposures and Olean has almost 2000.  

Patients v VA Hospital Pittsburgh
To be Filed

The House is investigating the Pittsburgh VA facility due to an outbreak of Legionnaire's Disease.  Three died.  It apparently came from a VA water treatment facility.

Lopez v Contra County Regl Hospital

Lopez was pregnant and developed complications.  She was admitted and ordered to be placed in ICU but there were no beds.  The patient died after the birth of the child.  The court ruled the hospital did not have to transfer the patient to the ICU just hospitalize the patient to meet the stabilization requirement.        Top



The federal court of appeal stated that Obama's disputed appointments during the Senate recess were unconstitutional.  They negated all three appointments to the NLRB which unbalanced the Board toward the left.  This means his other appointments were also illegal and need to be revoked.  This is a great blow for the country.        Top


McKee v Laurion
Minnesota Supreme Court

During this Super Bowl weekend, it is fitting that the opinion was written by the great Viking Alan Page, now a state Supreme Court Justice.  In this case a patient posted a remark on line that included a claim that a nurse called Dr. McKee a "real tool."  The Purple People Eater stated that this is a vague term and therefore opinion.  The Court reversed the court of appeals and dismissed the suit.        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.