June 15, 2016 Recent Legal News


Peer Review and Employment







Caring Hearts Personal Home Services v Sebelius
10th Circuit

It has long been thought that some federal attorneys are not the brightest bulbs.  This case adds fuel to the fire.  CMS had sued the home health agency for $855,000 they overpaid them.  They won in district court but lost in the circuit.  Why did they lose?  They applied the wrong law, one that didn't exist when the overpayment occurred.  They also attempted to just strong arm the court without sufficient evidence and without knowing their own rules.

Washington Board of Pharmacy v Washington
US Supreme Court

Washington has a new rule that pharmacies can not refuse to fill prescriptions because of the owners religious beliefs.  The regulation was upheld by the left leaning 9th Circuit overturning the district court and the Supremes have to now decide whether or not to take the case.

Plaintiffs v Blue Cross Blue Shield of Michigan
6th Circuit

A settlement in a class action law suit has been upheld in the lower court but overturned at the 6th Circuit.  The insurers were going to pay $30 million to settle claims regarding price fixing.  The Circuit court said the lower court did not scrutinize the settlement closely enough and that most of the money was going to attorneys, never good. The case now goes back to the lower court for another look and hopefully to allow more transparency.         Top 

Peer Review and Employment

Valfer v Evanston Nw. Healthcare
Illinois Supreme Court

The surgeon sued the hospital for terminating his privileges after they found that close to 50% of his surgeries had lacked necessary intervention criteria.  He went through the standard fair hearing and of course lost as he did with the appeal to the board.  The lower courts found that the hospital did not violate its bylaws and had immunity from suit.  The physician said the hospital was willful and wanton which again the courts denied.  The Supreme Court agreed saying there was no willful and wanton since the surgeon could show no physical harm from the termination of his privileges.  The willful and wanton exception could not hold with all intentional harm, including harm to one's reputation or economic, as that would negate any immunity provided by the statute.  

Patel v Robert Wood Johnson University Hospital
NJ Superior Ct.

The physician sued after being required to submit an action plan requiring notification of his patients that he and his staff were out of network and obtain cent to treat after informing them of the cost.  The hospital had multiple complaints about the out of network billings of Patel.  They investigated and found he was charging multiples of the usual and customary charges.  The credential committee recommended the notification and the physician sued for discrimination.  The lower court granted summary judgment to the hospital and the upper court concurred as there was a legitimate non-discriminatory reason for the plan.  I don't understand what right a hospital has in the setting of fees for any non employee physician. 

Fisher v Nyack Hospital
NY App Ct

The court allowed a summary judgment from the hospital in a suit by a surgeon who alleged that the hospital terminated her privileges illegally.  She wanted reinstatement.  The surgeon received a fair hearing with cross exam and was represented by counsel.  The grounds for termination were reasonable by the hospital since she did not repeatedly respond to the ED when on call along with other major problems.  Hard to believe this got to appeal.        Top


Rasor v Nw. Hospital
Ariz Ct App

The court of appeal agreed with the lower court allowing the patient to access discovery of other patients who suffered similar injuries.  They wanted to show a pattern of hospital neglect.  They ruled that information on other patients was not privileged under the Patient Safety and Quality Improvement Act as medical records are exempt from the act since they were created for the care of the patient and not for safety or quality control. The patient had sued after developing a significant pressure ulcer due to failure of repositioning her.  The attorney wanted records of all the other patients that developed pressure ulcers in the ICU.  

In re Christus, Santa Rosa Health System
Texas Supreme Court

The state high court said that the trial court abused its discretion when it ordered the hospital to divulge its peer review records of the physician.  The Supreme Court found that mandamus relief was appropriate since the trial court did not conduct a in camera review to see if an exception existed.  The interesting part it is the physician sued that wanted the records released to show that the surgery had ended early due to the lack of equipment by the hospital and after a peer review he was found to be not charged of any wrongdoing.  

Munoz v Watsonville Community Hospital
ND Cal

The plaintiff sued for an EMTALA breach instead of malpractice.  This usually happens when an attorney is not familiar with the law.  The patient went to the ED had a full exam for abdominal pain, was prescribed a psychotropic drug and discharged her.  The attorney wrongly surmised that this was a failure of stabilization.  The attorney did not show any others that were treated differently than the plaintiff but just assumed there were.        Top


Abdale v North Shore Long Island Jewish Health System
NY Superior Ct.

The trial court declined to certify a class action suit against the hospital for failing to protect their private patient information.  The patients received care at the hospital.  The court said the class was incapable of being identified.  It had been identified as all patients of defendants whose sensitive protected information was stolen and or misappropriated from defendants during 2010 and continuing to at least through 2012.  The plaintiffs said the proposed class was about 300 but failed to indicate that all of the proposed class sustained damage as the result of the allege theft of information.

Patients v Stamford Podiatry Group
To Be Filed

The data of over 40,000 patients were compromised by an unauthorized individual who had covert access to the information.  They are now, after the fact, putting in the correct security provisions.  Watch for a major fine by the OIG.

Patients v ProMedica
To Be Filed

In another hospital screw up the records of almost 4000 people in two hospitals owned by ProMedica were compromised.  Two of the six  people who accessed the records were fired and the other four were severely disciplined, whatever that means.  This happened two years after a breach at another ProMedica hospital.  You would think the hospitals would have learned but they are not smart and deserve a major fine.

Patients v UNMH
To Be Filed

The University of New Mexico Hospital sent records on over 2800 patients to individuals instead of the medical record section.  They say they have identified the technical issues that allowed this to happen (how about their own negligence in not having something in place). 

Chambliss v CareFirst
D Maryland

The class action suit was dismissed since the plaintiffs did not allege any actual or certainly impending injury from the negligence of CareFirst.  Hope the attorneys lost a bunch of money.

Caldwell v Baptist Memorial Hospital
Tenn Ct App

The court said that HIPAA did not preempt state action in a medical malpractice case.  The sued physician wanted a QPO and the plaintiff objected stating HIPAA preempted state law on this.  The lower court agreed with the patient but the appellate court reversed.

FTC v Practice Fusion

The EHR company agreed to stop doing deceptive trade practices by posting patient names on line without getting consent.  They have now a consent agreement and a bad reputation.        Top


Humble Surgical Hospital v Cigna
D Texas

Humble sued Cigna for not paying for out of network services.  They originally paid the hospital via a negotiated claims process but later sent all the claims to the special investigative unit and did not pay.  Humble said that the claims were not paid if the patient had not paid their co-pay or co-insurance.  The judge ruled that Cigna denial were based on their own flawed interpretation of the plan the administer.  He ordered Cigna to pay $11.4 million in damages and anther $2.3 million in penalties under ERISA plus hospital attorney fees.  Cigna had first sued the hospital for inflating its claims and the court dismissed all those claims.

Escalera v Sharp Grossmont Hospital

The hospital is living up to its name, gross.  It is being sued for the actions of its former CEO in her zeal to go after an anesthesiologist for stealing drugs.  She ordered the secret filming of female operating rooms.  She found the doctor taking propofol but never proved he was stealing it and not using it for patients.  In doing so the hospital filmed women naked having gyn or OB surgery.  The hospital then compounded their problems by sending the pictures to an attorney.  The hospital has apologized and will now pay money for their mistakes.

MLK Hospital v Blue Cross

Los Angeles' Martin Luther King Hospital has filed suit against Blue Cross and Blue Shield of Georgia for paying patients directly and not the hospital.  As is custom in the industry the patient signs over their right to the money when they enter the hospital.  The hospital states when they file a claim that they have received the patient's authorization for the money.  This insurance company is paying the patients anyway possibly as a way to get the hospital to sign a direct contract with them.

EEOC v Baystate Medical Center

The federal agency has filed a claim against the hospital for refusing to accommodate an employee's religion in her refusal to get a flu shot or wear a mask when treating patients.  The person was a recruiter with no patient care duties.  She had to remove her mask to be understood.  She was terminated and the complaint seeks back pay and damages with injunctive relief.

DOJ v Carolinas Healthcare System

The Justice Department is suing the largest hospital system in North Carolina for requiring insurance companies that contract with it to not put competing hospitals in their top tier and also will not allow insurers narrow networks with only its competitors.  The system is defending its tactics but eventually will sign consent decrees and get rid of all the illegal language.        Top


US v Patel

Dr. Paresh Patel of Franklin Township, New Jersey, was sentenced to 12 months in prison for accepting bribes from Biosound Medical services.  He has also forfeited over $174,000 and was fine $6000.

US v Ostrager

Dr. Bret Ostrager of Woodbury, New York, was sentenced to 37 months in prison, forfeited $101,000 and fined $30,000 for taking bribes from the dreaded Biodiagnositc Laboratory in New Jersey.  He is one of 26 physician involved taking bribes from this organization.  This doctor also solicited and received bribes of tickets to various sporting and entertainment events.

US v Tauraso

Dr. Nicola Tauraso of Fredrick, Maryland, pled guilty of health care fraud for writing prescriptions for narcotics without medical need.  He was originally a pediatrician who morphed into pain management.  His license had been revoked for this in 2011.  The fraud was from 2009-11.

US v Kabtimer

Dr. Hailu Kabtaimer of Hendersonville, Tennessee, was arrested and indicted for accepting bribes for referring patients to a medical supplier.  

US v Salix Pharmaceuticals

Salix agreed to pay $54 million for violations of the federal anti-kickback statutes.  They paid physicians for speaker programs in return for prescribing their meds.  This was back when physicians could go to a restaurant and have a meal and hear a speaker.        Top


New Mexico v Ternes

Annette Ternes of Clovis, New Mexico, was arrested for pretending to  be someone she was not.  She held herself out as a NP but was only a RN.  She had stolen the DEA number of a NP who applied for a job and was interviewed by Ternes.  

US v Robinson

Ivan Robinson of Southeast Washington D.C. was indicted for distributing oxycodone illegally.  He is a nurse practitioner with a pain management practice that stopped in 2013 when he gave up his DEA license. 

In re Fata

A website has been set up for restitution of the patients of Dr. Farid Fata.  Fata was the oncologist who scammed patients into unnecessary chemotherapy.  he is now serving 45 years in prison.  There is a restitution fund of $11 million for the victims.        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.