July 15, 2011 Recent Legal News


Peer Review and Employment







Fodera v Daines
NY App Div

The court concurred with the Medical Board that a physician who lied on two hospital applications was guilty of professional misconduct for not mentioning ongoing disciplinary proceedings in her applications to two other hospitals.  Dr. Maria Fodera was originally charged with 17 counts of professional misconduct.  After a hearing all except the false statements on hospital applications were dismissed.          Top

Peer Review and Employment

D'Lima v Cuba Hospital

Dr. D'Lima, DDS, was on staff at the hospital and was suspended one month after the CEO of the hospital instructed a dental assistant to spread rumors about the dentist having substance abuse problems and the CEO also told the hospital's human services about the substance abuse problem.  The dentist sued under ADA and that was dismissed due to individuals being unable to be held liable under the ADA.  The ADA claim against the hospital was dismissed because the dentist did not exhaust all administrative remedies prior to suing.  The defamation claim against the CEO telling the human services person was also dismissed since both had a duty to investigate.  The CEO telling the dental assistant to spread rumors was not dismissed and will go to trial or settlement. The hospital may also be held liable for the CEO's actions. Now who would ever believe a CEO doing something like this???  Just almost every person who works in a hospital.

Va. Hosp-Arlington Health v Aki
Bankruptcy Ct

Dr. Aki had been suspended from the hospital and sued that hospital eight times.  He not only lost but the court refused to allow him to file any more claims against the hospital without their consent.  The court also awarded attorney fees to the hospital.  The physician then filed for bankruptcy and the hospital filed to make the claim non-dischargeable.  The hospital lost and dropped it.  The physician had not learned any lessons and filed a claim for sanctions.  He again lost. 

 Bhandari v Washington Hospital
Ca Ct. App

Dr. Bhandari made some statements that went against the hospital.  The problem was that he was the Chief of Staff Elect and a member of the medical staff MEC.  The hospital and the MEC did not like what he said and removed him from the MEC and set conditions on his re-appointment.  He attempted to get a peer review but was unsuccessful since no privileges were involved.  He sued the hospital and in the lower court prevailed on a summary judgment motion from the hospital to have the physician's suit tossed under the infamous California SLAPP statute.  The hospital appealed and won in the court of appeal. This goes to show that in California one must watch what they say about the hospitals.        

Georgopoulos v Humility of Mary Health
Ohio Ct App

Dr. Georgopoulos, a CV Surgeon, was peer reviewed for long surgeries and high blood usage.  He was told to have a reviewer for his next six cases.  He first voluntarily stopped surgery and then quit practice.  He sued for lack of due process.  The courts ruled the defendant physicians and CEO were all protected under HCQIA.  No damages.

Preau v St. Paul Fire and Marine Ins Co.
5th Circ

Dr. Preau gave a letter of recommendation to a fellow physician.  He did not mention that the physician had a drug problem.  A patient at the new hospital was injured and sued the new hospital.  The patient won a multi-million dollar judgment.  The new hospital sued the physician who made the recommendation.  The physician was covered by St. Paul who stated they would defend but not pay for intentional misrepresentation.  Dr. Preau sued and lost.        Top


US v Gumer

Dr. Alan Gumer, Psychiatrist in Miami, pled guilty of one count of conspiracy to commit fraud.  He was part of American Therapeutic Corporation (ATC) that did partial hospitalizations.  He admitted he signed forms for patients who did not need treatment.  He never examined the patients nor read what he was ssigning.  He also wrote prescriptions for patients that did not need them.  Over $200 million were billed for unnecessary services.  He faces ten years in jail and a $250,000 fine.  The owners of the PHP have pled guilty and are awaiting sentencing.

US v Nathu

Dr. Rakesh Nathu of Los Vegas has agreed to pay $5.7 million plus interest for false claims for radiation oncology services. He billed for expe3nsive procedures when less expensive procedures could have been safely used.

US v Johnson

Samuel Johnson of Baton Rouge was sentenced to five years in jail for fraud in the DME arena.  He also has to pay $878,280 in restitution plus an additional $928,280 in proceeds from his crime.  

US v Akhigbe

Dr. Akhigbe of DC was convicted of health care fraud and appealed.  The DC court agreed with the physician and ordered a re-sentencing hearing.  The court would not overturn his conviction.    

Pennsylvania v Umoh

The state has arrested Udo Umoh for Medicaid fraud.  He is a mental health worker who is accused of billing for services at different parts of the state at the same time. 

US v Mclain

Two Mclains in North Carolina were sentenced to 24 months each in jail and ordered to pay together $1,313,671.14 to the IRS.  They had pled guilt of health care fraud and withholding but not paying taxes from their employees.

US v Shelton

In Longview, Texas, Sheena Shelton was sentenced to 18 months in a fed pen and ordered to pay $150,000 restitution for DME fraud.  

US v Langman

Dr. Leonard Langman of Brooklyn pled guilty of healthcare fraud.  He was a neurologist who upcoded and billed for services not provided.  He faces 10 years.        

US v Bernhard

Dr. Larry Bernhard, podiatrist, pled guilty of fraud and identity theft.  He agreed to a three year exclusion from Medicare but continued to bill Medicare while under exclusion.  He faces 10 years in prison for fraud and a mandatory two years for identity theft. Medicare states it was not their role to monitor that Dr. Bernhard did not bill Medicare for any services.  He continued to bill several Medicare HMOs for services including foot services on a double amputee.  The HMOs never checked to see if Bernhard was on the list of excluded providers as they should do.   

US v Roe

William Roe, a former hospital CEO in Connecticut, was convicted and sentenced to 33 months in prison for using his outside companies to swindle his own hospital.

US v Chan

In a whistleblower case Dr. Alfred Chan, Oncologist, and his wife Judy Chan of Lakewood, Washington, have been arraigned for healthcare fraud.  They are accused of dispensing less medication than billing for.  He was accused of writing on a slip of paper how much medicine a patient should get by his nurse.  After the patient got the meds he would write a super bill stating more medicine was given.    Top


Williams v Booker
Ga Ct. App

Dr. Booker is an alcoholic and allegedly placed clips in the wrong spot during gall bladder surgery leading to a bile duct injury.  The patient sued the hospital and the physician for malpractice and for not telling her about his alcoholic condition.  The court said that alcoholism is not a condition that can be sued for, only if it relates to causation.  There was no evidence in the lower court that the physician was in his cups while doing the surgery.  Under Georgia law a physician does not have to reveal any substance abuse to patients.

Beller v Health and Hosp Corp of Marion County
SD Ind

The corporation owned the ambulance service.  The patient had a prolapsed umbilical cord and was taken to the closest hospital.  The newborn suffered anoxia.  They sued and the court had no idea what it was doing.  It is good medicine to take a true emergency like this to the closest hospital that can help the patient unless it is a trauma that needs to go to a trauma hospital.  The court stated that the ambulance was an extension of the hospital ED and the patient needed to be stabilized before being transferred to another hospital.  A really dumb decision.

Studt v Sherman
Ill Supreme Ct.

The high court stated that the hospital is liable for the negligence of its employed physician under vicarious liability.  The court stated that in a med mal case the jury needs to hear an expert witness.  In a case against a hospital the jury may hear rules, regs bylaws or experts but does not need all.  

MacDonald v Ahmed
W Va Supreme Court

MacDonald sued Ahmed for muscle problems that developed after Dr. Ahmed prescribed a medication.  He won $1 million and another $500,000 for disruption of marital relations.  The judge cut the $1 million to $500,000 and rendered the wife suit null.  They appealed.  The Supreme Court ruled the law that limits medical liability to a cap of $500,000 was in the realm of the legislature and they were not going to overturn it.  

Mission Viejo Emergency Assoc. v Beta Healthcare Grp.
Ca Ct App

The emergency medical group applied for and received med mal insurance from Beta Healthcare Group.  When the emergency group was sued the insurance company failed to settle the claim and the physicians sued.  As is typical for physicians they forgot to read the contract which clearly stated that any disputes between the physicians and the insurance company was to be settled via arbitration.  The trial court obviously could not read either and ruled for the physicians.  The judges of the appellate court have learned to read and they rightfully reversed the trial court.  

Davis v Wooster Orthopedic
Ohio Ct. App

The court ruled that expressions of sympathy from a physician to a plaintiff are inadmissible but statements of liability are not.  Here, the physician expressed his sorrow, told the family of the patient who had died following back surgery that he had nicked an artery and was responsible for the injury. As the Ohio statute was silient on whether sympathy and liability were exempt from admission the court took it upon itself to say that the legislature did not intend liability to be exempt. 

Metzler v VA
Trial starts

 The first of many trials against the VA in Florida for the VA negligence in cleaning colonoscopes at three facilities in Florida.  The plaintiff has hepatitis C.  The VA contends that this may be cured, not that what they did was not negligence.  They are also claiming that it is impossible for Metzler to have gotten the virus from the colonoscope in the time frame.  He is suing for $1.5 million in economic damages plus $750,000 for each he and his wife for emotional damages.  The plaintiff tested negative for C in 2006, had the colonoscopy in 2007 and tested positive in 2009.          Top


I.S. v Washington Univ.

The court ruled that even though there is no private right to sue under HIPAA the patient can sue the University for negligence "per se".  The patient had a colon cancer and when she asked the University to send the records of the cancer to her employer for her medical leave policy, the University sent sent records regarding the HIV status, insomnia and mental health all with out permission.  The per se relied on the HIPAA statute.  The claim was then remanded to state court.  

Brown v Mortenson
California Supreme Court

The California high court ruled that medical providers can be held liable if they release information about a patient to collection agencies without patient consent.  California has very strict laws about what can be released without patient consent.  These laws even overrule HIPAA.        Top


Hancock v Variyam
Texas App Ct

One doctor was mad at his supervisor so he resigned and send a letter of resignation to his supervisor but also to others including the Chief of Medicine.  The letter claimed the supervisor lied.  The court allowed libel per se since it hurt the professional reputation of the supervisor.  The court did not agree that the statements were true.  The supervisor was awarded $175,000 plus $6500 interest.  The physician appealed and lost.    

Sutter v Unite Here

The union sent post cards to patients stating the hospital maternity ward was dirty.  The hospital sued and now the lying union has to pay $6 million to the hospital and make a public apology.  This should take some steam from their lying.  They had to go through a full trial which the hospital won and then an appeal and finally a mediation.


California v Vasin

Vasin was convicted of impersonating a physician and practicing medicine without a license.  He was sentenced to a grand total of 30 days in jail. 

US v Lynch

Patrick Lynch, a fake MD, saw many elderly people and billed the service to Medicare, a federal offense.  He pled guilty to health care fraud and aggravated identity theft.  He created Visiting Doctors of New Jersey to provide care to nursing home patients.  He hired licensed physician to actually do the visits.  He did not pay the professionals who then quit.  He took their identities to see the patients himself.  This carries a maximum sentence of ten years in prison and a fine of $250,000 or twice the gross gain or loss from the offense.  The identity theft is a mandatory two years.   

California v Becker

Catherine Becker did a Lorena Bobbitt.  She drugged her ex-husband, cut off his penis and put the part down the garbage disposal.  The husband's comment was that he deserved it.  She is now up multiple charges including aggravated mayhem which carries a life sentence.       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.