July 1, 2015 Recent Legal News





Peer Review and Employment



Patients v West Chester Hospital

Dr. Atiq Durrani, a Pakistani, was accused of performing unnecessary surgeries at West Chester Hospital and Cincinnati Children's Hospital.  He fled the country so the patients are suing the hospitals. They are requesting class action status.  The firm that filed the claims is a law firm whose lead attorney has been suspended by the state Supreme Court.  Gives one a lot of hope.  The "doctor" used unapproved material injected into the spines of patients.  There are about 500 cases pending against him most by the same law firm. 

Damgaard v Avera Health
D Minn

In another case of the attorney not knowing the law, the patient was injured by inadequate oxygen at birth resulting in CP.  The attorney sued the employer and the parent company.  Both were set free by the court on summary judgment.  The physician was employed but there was no direct corporate negligence as the state law does not recognize that tort.  There was no evidence presented by the attorney for negligent supervision and no foreseeability.  The court also said the parent company was not an employer of the physician and therefore was not a defendant.  Finally they lost on attempting to rely on the policies and procedures to establish vicarious liability as these are protected under the state peer review statute.  The physician was also not a borrowed servant for the lack of training of nurses since the attorney also did not allege any negligence by the nurses.  I wonder if the attorney ever got around to suing the physician.

Magnini v Centregra Health
Ill Ct App

In another vicarious liability suit, the attorney sued not only the physicians but also the hospital where the gastric bypass was performed.  The hospital won on summary judgment since the contract between the physician and the hospital said the physician was an independent contractor and the hospital did not control the actions of the physicians.  This was so even if one physician was also an administrator of the hospital since the duties were separate.

Doctors Hospital of Augusta v Alicia
Ga Ct App

The court permitted battery and other negligence claims against the hospital stating the state Advance Directive for Health Care Act did not apply in this case.  The facts are the woman had an advance directive that gave the granddaughter power of attorney.  The hospital ignored the advance directive and intubated the woman without notifying the granddaughter as she had advised them to.  The granddaughter then had to have the tube removed and the woman died soon after.  Sign the check.

DB v Ingham

DB, a patient in Virginia had a colonoscopy.  While in the state of full anesthesia  the anesthesiologist, Dr. Tiffany M. Ingham made slanderous comments about the man.  This was all recorded on his phone that he had kept on during the procedure.  The phone was to record post operative instructions.  She has moved since the case came to light and is not working, to my knowledge.  The jury awarded DB $200,000 for medical malpractice, $100,000 for defamation and $200,000 for punitive damages.  They said the employer of Ingham should pay $50,000 of the punis.  The colonoscopist was removed from the case.  Ingham also falsified the medical record saying the man had hemorrhoids when he did not.  Just stupidity all around.

Barr v Lonika Homes

Kevin Barr was a 15 year old boy with epilepsy.  He had been living in an assisted facility near his parents.  He died after a seizure.  The parents alleged he missed a medicine dose prior to the seizure and he did not get timely or any CR.  They say the person caring for Kevin did not have CPR training and did not call for help for one hour.  She was bathing two other children when the EMTs arrived two hours later.  The jury awarded $5.7 million and will return for the puni phase of the trial.  The verdict was high because the care facility worked to conceal its mistakes from the parents.        Top


King v Burwell
US Supreme Court

The high court did what it is supposed to do.  In a 6-3 decision it ignored the plain law and made the right political decision.  It upheld the feds in their poorly drafted law.  Scalia said the law needs to be renamed SCOTUSCARE.  The most expensive healthcare insurance program in the country can continue.  

Walker-McGill v Stuart
US Supreme Court

The high court refused to hear a case from the 4th Circuit which overturned the North Carolina law mandating physicians give a script to all women seeking abortions.  The physician would have been required to do an ultrasound on all abortion seekers, show the images to the woman and describe them in detail to here even if the woman did not want to see or hear about it.  

Planned Parenthood v Iowa Board of Medicine
Iowa Supreme Court

The state high court has ruled that providers in the state may legally prescribe abortion inducing drugs via telemedicine.  This reverses the Board.  They ruled that the required presence of a physician in the room with a women for her to get the medicine is an infringement on the Iowa constitution that gives a woman a right to choose.

Council for Urological Interests v Burwell
DC Circuit

The district court stated the HHS definition of an entity furnishing designated health services is the one either doing or billing for the service.  They did not agree the "per click" prohibition under the Stark Law.  This ban may be inconsistent with Congressional intent.  They remanded the matter to HHS to reevaluate whether the ban is consistent with the intent.

California Advocates for Nursing Homes Reform v California Dept. Public Health
Alameda Superior Court

The judge ruled the law that gave nursing homes authority to decide medical treatment for residents if a physician declared them incompetent.  The ruling is important in that the homes now must inform patients if they are deemed incompetent by a physician and give them the right to object.  The case was an incompetent man who was taken off life support without his consent or the consent of a representative.  This will make life more interesting for nursing home administrators.

Zubik v Burwell
US Supreme Court

The Supremes issued an order temporarily banning the administration from barring religious objections to coverage for birth control under Obamacare.  The court will decide whether or not to hear the case formally in the next docket.  

NARAL v Texas
United States Supreme Court

The court temporarily blocked a Texas law mandating physicians performing abortions have hospital privileges and abortion clinics must have equipment available equivalent to a hospital.  The law was to go into effect July 1 with the blessing of the 5th Circuit.  The Court voted 5-4 on the matter.  The court will decide later whether or not to take the case.

Gobeille v Liberty Mutual Insurance
US Supreme Court

The Supreme Court has decided to take this case for its next term.  The question is who controls the data.  Vermont wants Liberty to turn over information it believes it needs to regulate the insurer.  This includes claims, member eligibility and other like issues.  Liberty believes ERISA says it does not need to turn the information over.  The 2nd Circuit has ruled that ERISA does take precedence.  At least 11 other states have similar databases that are used for their exchanges.        Top


US v 243 Individuals

In a huge national sweep the feds have arrested 243 people on fraud charges related to health care. The charges relate to $712 million in false submissions to the fed.  The  individuals were from all parts of the healthcare arena.  

US v Children's Hospital

The hospital in DC has agreed to pay almost $13 million to resolve allegation of submitting false cost reports to increase payments.  This was a qi tam suit by a former employee and he will get almost $1.9 million.

US v Proctor

Vero Beach, Florida, physician Donald Proctor has agreed to give up billing Medicare for five years and pay $4 million to settle allegations that he performed unneeded and unnecessary Mohs procedures as well as billing for procedures never performed.  Proctor was turned into the feds by another Mohs surgeon who referred some cases to Proctor and by Proctor's histology person.  They will share $980,000.

US v Ohemeng
9th Circuit

Agustus Ohemeng was the medical director of Pacific Clinic in Long Beach.  He was indicted and convicted of health care fraud for writing unnecessary prescriptions for DME.  He appealed since he believed the trial court did not follow the indictment, a legal argument used when the facts are against you.  He lost at the 9th as well .

US v Briley

John Michael Briley, NP, of Jackson, Tennessee, was indicted for stealing prescription from physicians and illegally authorized DME for over 40 patients.  

US v Berman

Dr. Edward Berman of Ridgefield, Connecticut, agreed to pay $218,633 to settle allegations that he billed for SNF procedures never performed by the infamous upcoding.  He did not admit liability.

FTC v St. Luke's

While not a fraud case it is antitrust.  St. Luke's has, according to the FTC, been stonewalling the unwinding of Saltzer Clinic from the hospital as ordered by the courts.  Let's hope they get fined big time for their recalcitrance.

US v Rogan

Peter Rogan, the former CEO of Chicago's Edgewater Hospital is now before a judge.  He fled to Canada years ago to avoid prosecution.  He is now back to face those charges of impeding an investigation, healthcare fraud and obstruction of justice.  The hospital went under in 2002 and agents found a receipt showing he had paid a company to shred many boxes of financial records. Edgewater filed millions of dollars in fed claims for services done because of kickbacks.

US v Davita

Davita agreed to pay $450 million to settle allegations that it filed false claims.  It is alleged that it used higher than necessary doses of two drugs and submittted the bills for these larger single use vials.

US v Alfonso

Healthr Alfonso, RN, worked in a pain clinic in Derby, Connecticut.  She took kickbacks from Insys Therapeutics to prescribe Subya (fentanyl).  She got paid for speaking engagements even if the only participants were drug salespeople.  The feds are going after the company by going after the individuals first and flipping them.

US v Cwibeker

Melvin Cwibeker, DC, of Long Island pled guilty of fraud and obstruction a federal audit.  He billed for services not performed and then created false records to cover up.

FTC v Michigan Hospitals

The FTC has filed an action against four hospitals in Michigan alleging stifling competition by having agreed upon marketing territories. Hillsdale Community, ProMedica and Community Health Center of Branch County have settled the allegations.  W. A Foote Memorial has been a holdout.  The settlement is that the offending hospitals agree not to work with other hospitals or physicians to limit marketing or divide geographic markets.  It also prohibits them taking to each other about their marketing.

US v Golding

Dr. Devon Golding of St. Louis was sentenced to 4 months in prison and 8 months in home detention for healthcare fraud.  He let a nurse who failed her nurse practitioner exam several times practice as a nurse practitioner and billed for the services.

US v John Muir Health 

The hospital system agreed to pay a fine of $500,000 to resolve allegations that its radiation oncologists did not adequately supervise radiation therapy on patients.  This is a requirement for billing by the institution.  This was a whistleblower suit.        Top


Patients v North Shore LIU
To Be Filed

Five laptops were stolen from a contractor with the information of 18,000 people.  The laptop was password protected but the information was not encrypted.  Dumb.

Patients v UC Irvine
To Be Filed

In yet another act of negligence this institution allowed an employee to breach the medical records of 4800 patients. The only reason they found it is because someone squealed on the employee.   The reason for the breach is not known as yet but it does not appear that the information was sent out of the hospital.

Patients v Montefiore Medical Center
To Be Filed

Eight people have been indicted for stealing personal information of 12,000 individuals.  The employee, Monique Walker an assistant clerk, stole the information and passed it on to others for the grand price of $3 each.  They then went on shopping sprees in New York stores.  The hospital is providing all with credit checks, a $1 million policy and identity recovery services if needed.

Patients v Akorn Co.
To Be Filed

The pharmaceutical company in Lake Forest, Illinois, had the records of 50,000 people stolen which included DEA numbers of providers and offered for sale to either the highest bidder or the company.  This was from an Australian hacker.  

Patients v Lancaster County EMS
To Be Filed

The EMS had flash drives in a safe but unencrypted.  The safe is missing. About 100,000 have had their information potentially compromised.        Top

Peer Review and Employment

S. Health Corp. of Houston v Crausby
Miss Ct Appeal

The court of appeal overturned a jury finding against a hospital for conspiracy to tortuously interfere with a nurse's employment.  The court said the hospital's firing of the nurse was a legal activity and done in a  legal manner.   The court also affirmed the jury verdict against the chief of staff of the hospital for slander.  He said the statements were protected under the qualified privilege but the court said they were done with malice so not protected. 

Graves v Indiana University Health
Ind Ct App

In another of a long line of physicians with hospital privileges suspended and suing and losing, here a cardiologist attempted to overturn his dismissal.  He, of course, failed.  He said he did not get to call necessary witnesses and was discriminated against.  The court said he raised no objections at the hearing and the hospital had legitimate reason to can him so there was no discrimination.

Tate v University Medical Center
9th Circuit

Teh 9th Circuit took almost no time in determining the medical center violated Dr. Tate's rights by not giving him a fair hearing when they terminated his privileges.  This is one of several cases of this hospital going after good doctors and losing.  They have paid out many millions of dollars due to their poor treatment of physicians.  Bad hospital that should be avoided.

Church v Beth Israel Deaconess Medical Center
To Be Filed

Urologist Dr. Paul Church has been terminated from the staff of the hospital.  There are no, and I mean no, quality of care issues.  His problem is his belief that a hospital should not insert itself into political causes.  In particular the backing of gay issues.  he believes and has medical proof that the gay lifestyle causes medical diseases above and beyond heterosexual causes.  He has published on the hospital bulletin board his beliefs.  After being criticized by the hospital he stopped posting and requested the hospital stop including him in their backing of gay issues.  The hospital did not do as he asked.  Instead the medical executive committee has taken away his privileges.  This should make for a fascinating case as HCQIA is not involved at all but the first amendment is.

Yau v Saint Francis Memorial Hospital

Yau is an Asian nurse at the hospital.  She has reported problems at the burn unit on many occasions but has received no responses and the hospital did not correct the areas of concern.  The hospital found that she violated HIPAA for accessing one patient chart illegally and fired her.  She is suing based on retaliation and discrimination.  The court ruled against the hospital in summary judgment allowing the retaliation part to continue.

Levitin v Northwest Community Hospital
ND Ill

Dr. Levitan sued the hospital after her privileges were terminated for discrimination.  The doctor is female and Jewish and claimed she was subjected to harassment.  The hospital defended on the grounds that the claims were beyond the statute of limitations.  The court ruled that the entire harassment up to the date of termination was not beyond the statute and she can attempt to show acts of discrimination and harassment within the statutory time.        Top


California v Mrdjen

Dr. Jasna Mrdjen of Los Gatos, California, is going on trial for drug dealing and homicide.  She has been in jail for the past year but is now out on bail and has lost her license.  She has been accused of prescribing drugs for street use and prescribing the drugs that one addict used to OD and die.  She has been caught on tape peddling drugs to an undercover cop.        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.