January 12, 2005 Recent Legal News

Fraud and Abuse


Physicians v Insurers


Peer Review


Fraud and Abuse

US v Hames

Mr. and Mrs. Hames and James Davis were all sentenced to prison for Medicare fraud in a home nursing care business. Mr. Hames and Davis each got 70 months and Mrs. Hames got 102 months in federal prison.  The trio also had to pay restitution of $2,885,020.  This included Mrs. Hames and Davis forfeiting property and $410,000 cash.  Davis also must pay an additional $507,649. 

US v Healy & Baird

Healy and Baird the current and former chief executives of Redwood Family Clinic in Vallejo, California, were sentenced after pleading guilty to filing false tax returns.  Healy received one year and one day in prison plus restitution of $90,000 to the clinic.  Baird got six months in prison and six months in home confinement and payment of $187,367.    

California v Origel, DC

Chiropractor Wilmer Origel and two associates were arrested for billing fraudulently, grand theft, and practicing medicine without certification.  Bail for Origel was $1 million and $300,000 for the other two.  Origel also owns the billing company in Modesto, California, Unique Billing.  It sounds like it lived up to its name.  

US v Nazaryan, Tenet

Mina Nazaryan, the prior administrator of Alvarado Tenet Hospital, has pled guilty on one count of conspiracy to illegally paying physicians for referrals.  She originally had 17 counts against her.  This is not good for Tenet as the guilty plea implicates them as her employer.   

US v Ahmad

Dr. Ahmad, a general practitioner in Seattle, Washington, received a prison sentence of one year and one day for overbilling and billing for nonexistant office visits.  She surrendered her medical license and agreed to never practice in the US again.         Top


Borger v Lovett
Nevada Supreme Ct.

The Supreme Court ruled on a case intended to clarify the Nevada malpractice reforms passed in 2002.  The law stated that there needs to be an affidavit filed in support of the plaintiff by an expert witness who practices in an area similar to the defendant.  The parties stipulated that the new law would apply even though the the suit started prior to the start of the law.  An affidavit was submitted by a gastroenterologist against a surgeon.  The lower court dismissed the case but it was argued that the affidavit should be allowed to be amended to be by a general surgeon.  The Supreme Court ruled that ht e "substantially similar" wording is close enough for a gastroenterologist and a surgeon.   

Rouse v Brigham & Woman's Hosp.    

Rouse is the widower of a woman who gave birth at the hospital and then bled to death.  The patient needed an emergency C-Section for a lessening of the fetal pulse.  Post operatively she had falling blood pressure and decreased oxygenation but no repeat surgery for 5 1/2 hours.  They found two arteries bleeding and needed a hysterectomy and then a oopherectomy to stop the bleeding.  She died several days later.  This case sounds indefensible and will be settled.   

Furlong v Catholic Healthcare West
Ca. Ct. App.

Furlong was a patient in the hospital and had a "Do Not Resuscitate" order.  She coded and was resuscitated.  She lived 10 days and died.  The hospital and physician were sued for Elder Abuse.  The court said nope. The actions did not rise to the threshold needed for the Elder Abuse statute to take hold.

Patients v Duke Univ.
Yet to be filed

Duke University has notified about 4000 patients that they failed to sterilize their instruments correctly.  Their "detergent was actually a hydraulic fluid.  The University did state that after the cleaning with the fluid the instruments were sterilized.  The University also stated that no one need be concerned since the instruments were sterilized.  There will be some emotional distress over this incident.   

Garland Comm. Hosp. v Rose
Texas Supreme Ct.

Rose sued for negligence her physicians and later added the hospital for negligent credentialing.  The hospital moved to be dismissed since there was no expert testimony against the hospital in the negligent credentialing.  The hospital also stated that negligent credentialing was medical malpractice and not a separate tort.  The lower court and the Supreme Court agreed. The high court stated that there must be expert testimony against the hospital and that credentialing must be not only prior to but also during the time of the treatment of the patient.

Judd v Drezga
Utah Supreme Ct.

 Judd, the mother of the injured baby, filed suit and won against Dr. Drezga.  This case involves the upholding of the med mal statute on damages in the state.  The Supreme Court upheld the law and reduced the non-economic damages to $250,000 from $1, 250,000.      Top

Physicians v Insurers

Physicians v HMOs
US Supreme Ct.

In the consolidated case in Miami which the 11th Circuit stated could be a class action suit, the US Supreme Court refused to hear.  This leaves the 11th Circuit decision intact to the great delight of the physicians and the embarrassment of the HMOs.

N.J. MD v Oxford

The American Arbitration Association has certified a class action against Oxford for short changing the physicians via improper claims processing.  This is the second one certified as a class action in New Jersey.  About six months ago the claim against Horizon Blue Cross was also certified.

Conn. Med. Soc. v Oxford
Conn. Supreme Ct.

The high court dismissed the claims against Oxford and ConnectiCare.  The rationale was the lack of standing by the society. The court stated that the society was too remote from the actual injury.  The physicians can sue on their own after they attempt to arbitrate as per their contract. The Society had already settled with Aetna and Cigna.  The cases against Anthem, United and Health Net are still open.

Merkle v Aetna
Fla. Dist Ct.

Dr. Merkle, an Orthopod, has filed suit against Aetna and has asked the court to certify it as a class action for all physicians having similar problems with Aetna, Neighborhood Health, Vista and Blue Cross.  The suit alleges that the insurers pay only a fraction of the physician's billed charges.  The insurer answers by stating that Florida law does not require the payment of unreasonable or arbitrary charges.  This is when the patient is at an out of service hospital and is being treated by out of service physicians.  Since there is no privity of contract the hospitals and physicians bill at full rates and expect payment at full rates. The question is what is the definition of reasonable and customary charges.  In 2003 an arbitrator stated that 120% of Medicare is reasonable.  This has not been court tested.        

Rahway Hosp. v Blue Cross
NJ Superior Ct.

I a putting this here as it is a natural sequence to the above case.  The hospital sued and won against the insurer for having them pay the full charges when there is no contract between them.  The hospital had terminated its agreement with the insurance company.        Top 


Patients v Non-Profits
Florida Fed. Ct.

The cases against the non-profit hospitals for overcharging the public uninsured patients are being attempted to be withdrawn from the Florida federal court.  The judge was not happy with the cases and threatened sanctions against the plaintiffs for the filing.  The plaintiffs are withdrawing the suits and re-filing in state courts against the wishes of the hospital counsel.  

The same is happening in Illinois and will happen in all the other federal courts. 

Patel v Shah
Ca. App. Ct.

 In an unpublished opinion that can not be used as precedent, the lower and the Ct. of Appeal both ruled that the hospital and medical staff must follow their bylaws.  One physician won the election for chief of staff by one vote.  The loser appealed since the election committee tossed out six votes.  The MEC agreed and ordered a new election in which the original loser won.  The original winner sued in mandamus to force his seating as president of the staff.  Both the trial court and the Court of Appeal agreed that the bylaws gave the power to the election committee to decide which votes to be counted and did not give any power to the MEC to oversee the election committee's decisions.  The original winner won.  

Collins v Lake Forest Hospital
Illinois Supreme Ct.

Collins fell and suffered a head injury which left her unable to function withou artificial devices.  On admission to the hospital the admitting physician did not opine as to the patient's ability to consent to procedures or decision making capacity.  The following day a new physician took over care and decided to remove the ventilator.  The wide called and asked that the ventilator not be removed until she and her children could visit.  The hospital did not obey and when the relatives arrived the patient had expired.  They sued the hospital and the second physician.  In a strange decision the high court ruled that the law stated the physician must state in the chart that the patient had no decision making ability prior to going to the surrogate.  Since the physician did not do that and even though the patient had no brain function the hospital and physician did not have to abide by the wife's wishes nor did they have to inquire regarding any surrogate without the chart note. Top

Peer Review

St. Petersburg Times v Regional Med Ctr.
Fla. Superior Ct.

The Times has sued the medical center over the records relating to the dismissal of nine cardiologists last month.  They are suing under the recent Florida proposition that mandates the release of information by the hospital on adverse medical incidents.  The medical center stated they could not release the information since the legislature has not implemented the proposition and it is against federal privacy laws.  The judge didn't care.  He stated the law is clear and allowed the newspaper to continue to their suit.   

Treat v Garrett Hosp.
D. Md.

 A female ED physicians was fired by her group and summarily suspended by the hospital.  She resigned prior to any hospital hearing and sued on the basis of gender discrimination.  Her problems were billing irregularities and personality conflicts.  There was no evidence of gender discrimination.  

Ex parte Gadsden Med Ctr. 
    Alabama Supreme Ct.

A physician who sued a hospital for restricting his privileges attached to the complaint he filed against the hospital, his peer review documents.  The high court said you can't do that as it is against the Alabama peer review laws.  The file was ordered stored under seal.

Nugent v Saint Agnes 
Ca. Ct. App.

In an interesting case, the MEC of St. Agnes recommended stringent restrictions on the physicians practice.  The physician went through a hearing process and the committee recommended more lenient restrictions.  The MEC appealed and the appellate hearing after hearing the evidence went for the stringent requirements which the Board upheld.  The problem was the Appellate body acted contrary to the bylaws and acted as a second hearing body and not an appellate body to only look at the fairness of the process.  The physician sued and won a decision that the hospital had to accept the decision of the original hearing body.  This is an unpublished opinion so can not be used as precedent.         Top


Gray v Medical Board of California
Ca Appeals Ct.

Due process wins.  Dr. Gray, a Napa psychiatrist had is license revoked by the medical board due to an allegation that he molested a patient.  This was done without a hearing.  The doctor sued and won in the Appeals court that unless there is a showing of an imminent danger to patients a hearing on a criminal charge revocation of a license must b held.  If the Attorney General revokes a license under imminent circumstances there must be a speedy hearing post license removal.   

Talwar v State Medical Board of Ohio
Ohio Supreme Ct.

A physician sued to force the medical board to take disciplinary action against another physician for lying and falsifying medical records in a peer review hearing.  The court ruled that the physician had no power to force the medical board to take action against another physician.  This is only within the domain of the Board.      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.