March 1, 2012 Recent Legal News



Peer Review and Employment




US v Roy

Dr. Jacques Roy of DeSoto, Texas, has been indicted along with six others in the largest single person Medicare fraud case to date.  They are accused of bilking Medicare and Medicaid of $375 million.  Dr. Roy is accused of signing over 11000 blank prescription pads for home health services.  These were either never performed or not needed.  He would then to a home visit on these patients and order DME.  This has been going on for years and the money, although it seems like alot, is really a drop in the bucket.  The feds lose about $60 Billion per year to fraud.  

US v Ellis

Two nurses, Mary Ellis and Caroline Njoku, of Houston, Texas, were sentenced to prison for their part in a fraudulent scheme as well as perjury and obstruction of justice.  The underlying fraud was giving unneeded home health services.  Their two co-conspirators were sentenced the day prior.  All were responsible for repaying $482,000.   

US v Ikpow

 Connie Ipkow, a minister, nurse and owner of DME companies with her husband, was sentenced to 36 months in prison for a $14 million fraud.  She and her co-conspirators were also told to repay $6.7 million in restitution.      Top


Illinois v Volkman

Dr. Paul Volkman of Chicago was sentenced to four life sentences for the overdose death of four patients due to oxycontin.  The idiot fired his attorneys and proved the old adage.  He claimed he was only a physician doing his mission.  Most of his "work" was in Ohio. 

Flynn v Silverman

Dr. Martin Flynn, an anesthesiologist in Marina del Rey, California, has accused the president of 1-800-GET-THIN, Robert Silverman and Dr. Michael Omidi, the owner of the surgical centers used of identity theft. He alleges that Silverman set up a company called MAFL Medical Inc. that Dr. Flynn refused to participate in.  His information was used anyway to bill insurers for the anesthesiology services.  He also alleges Silverman set up other companies using other physician's information without their consent.  Silverman denies all wrongdoing.  Omidi is said to no longer work at the organization.    Top

Peer Review and Employment

Jaffe v Pregerson

Dr. Robert Jaffe of Kaiser Permanente in Panorama City, California, was suspended in 1994.  He sued in state court and lost in 2003.  He appealed to the Court of Appeals and lost again.  He then sued in federal court for fraud by the state justices and lost. This was in 2006.    He then appealed to the 9th Circuit and of course lost.  He is now suing in federal court again but this time against the original federal judges, and he lost. The court also forbid him leave to amend as it would be futile since the justices have immunity.  This ruling was done WITH PREJUDICE.  Therefore he may not appeal the ruling.

Pacific Radiation Oncology v The Queen's Med Ctr
Hawaii Fed Ct

The hospital decided to close it's radiation department and several physicians sued for a TRO.  The hospital wanted only employed physicians in the department.  The hospital also has the only radiation oncology department with a operating room on the island of Oahu.  The suing physicians were offered employment but refused since they would have to give up their appointments at other hospitals.  The court had reservations as to the merits of the plaintiff's case but the potential harm to the patients overcame those reservations and for now the TRO was issued.    

Piedmont Healthcare v Kowai
Ga Ct App

After doing a nasal procedure on a patient , the patient had a hand burn.  The MEC advised revocation of privileges for the physician.  The hearing committee voted for a 120 day suspension.  The Board went with the MEC.  Kowai sued and won in trial court an injunction.  This was reversed by the court of appeals since the bylaws on their face contradicted the trial court.  There is no mention of any review of the hospital's systems that may have led to the burns.  

US v Mayo
ND Miss

Dr. Hendren, a psychologist, was dismissed from Parkwood Behavioral Health.  She found that in 2005 another psychologist was poaching the patients that she was supposed to get and the hospital did nothing about it.  In 2007 the credentialing at Parkwood changed and required three letters of recommendation.  They did not receive a third letter for Dr. Hendren.  She sued in federal and state court for all the usual actors and lost.   She and another psychologist then sued again in federal court for false claims and HIPAA violations.  She then added supplemental state law claims for the same things she lost on prior.  She lost again since she only pled that her patient's were stolen and Medicare billed.  There was no allegation that the billed services were not rendered. 

Trujillo v Banner Health

Nurse Amanda Trujillo has been stirring alot of airwaves on several medical blogs.  The story is that she is a nurse at Banner in Arizona.  She was on the night shift and a patient asked her about a liver transplant he was to have in the near future.  After talking with the patient she realized the patient had a poor understanding not only of the procedure but what would be required of him afterwards with the meds and follow-up care.  She used the hospital's own educational material to tell the patient about the procedure and then went on to talk to him about hospice care and then on her own asked for a hospice consult.  She left a note for the team the next morning and the surgeon blew a gasket.  Bottom line she was fired for not being a team player and exceeding her scope of practice (something like a disruptive physician).  Nurses in the hospital have been allowed to ask for a hospice consult without consequences.  The question is should a nurse be allowed and encouraged to give informed consent to a patient or is that the physician's job?  Should the nurse only inform the physician when the nurse feels the patient does not understand the procedure fully and then have the physician tell the pros cons alternatives and complications to the patient?  The vast majority of nurses that responded on line backed Trujillo for how she handled the situation.  I might add the hospital not only fired her but reported her to the State Nursing Board which has a lot of present or former Banner nurses on the voting board.  You know they will not recuse themselves.  Nurse Trujillo has fired her attorney and has a new "team".        Top


Paulino v QGH of Springdale
Arkansas Supreme Court

The Court ruled that an employed physician's malpractice does not mean that the hospital did negligent credentialing.  The court said the tort of negligent credentialing does not exist in the state.  

Ronan v Sanford Health
South Dakota Supreme Court

The plaintiffs sued the defendant physicians for medical malpractice and lost in trial court.  The plaintiffs appealed since the court would not allow the notes of the plaintiff of the apology by the defendant to be admitted into evidence.  The plaintiffs tried to get the notes into the record by stating it was to impeach the witness.  The problem was they used it in their case-in-chief and not as any impeachment to any testimony.   

Smith v Mercy Med Ctr
Ohio Ct. App

In a turn around from the above case a patient was injured in the hospital.  The CMO talked to the family and admitted the hospital did not follow up on high potassium values.  The family secretly taped the apology and confession.  When the family wanted to introduce the recording in the trial court the hospital said no since the information came from peer review. The court stated that there was no evidence that the information came from a peer review hearing and would be admissible.  The secret recording is OK in Ohio as only one person has to agree to the recording in this state. The recording family obviously agreed.  In other states both parties must agree to the recording.           Top


Medical Defense Fund v California
US Supreme Court

The high court sent the case back to the state.  The case originated when the CMA sued the state for dropping the Medicaid reimbursements by 10%.  The state court sided with the physicians and forced the state to continue paying their usual rates.  The high court stated that the suit may proceed in the state court.  This was a 5-4 decision for the liberal side of the high court.  The 9th Circuit will have to decide the case again.  The last time it went with the physicians.       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.