May 1, 2010 Recent Legal News

Peer Review



Fraud and Abuse



Peer Review

Fontanetta v Doe
NY App

An Orthopod sued a hospital after having his privileges suspended.  The hospital attempted to have the case dismissed on the cheap but provided no written documentary evidence, only oral explanations of the procedures used.  This is not enough under the rules and the court stated they should attempt a summary judgment.  

Fox v Good Samaritan

This decade long case has reached both the state and federal court on many occasions.  Fox is a well known and highly respected pediatrician in San Jose.  The hospital put in a rule that all pediatricians must have two backups with the same privileges as the member.  Fox had no one who was in the same league as he and so could not get two members.  He stated that this was the idea of the hospital all along, which may be true.  However, it makes no difference because of the way HCQIA is interpreted.  Fox may not get money damages.  The law was involved since it took into account a professional review activity and professional conduct.  Since this was an administrative decision Fox was given no hearing. Fox was never reported to the NPDB and believed this took HCQIA out of play.  It does not.  Fox has lost in all state and federal courts that he has tried.      

Knatt v Hospital Serv. Dist.
5th Circ

The 5th Circuit decided that in the case of Dr. Theodore Knatt, an Orthopod in Lane Memorial Hospital in Baton Rouge, Louisiana, to dismiss all of the federal claims and remand the remainder of the state claims to state court.  Dr. Knatt had his privileges suspended for 21 days and then he was reinstated.  One of the physician's state claims revolved around an unfair practices law that the state high court had not ruled on.   

Deshpande v Medisys Health

Dr. Deshpande was terminated from the hospital in 2004.  He sued for discrimination because he was from the Davididan region of India and retaliation for making quality concerns known.  He re-applied for privileges but had concerns raised about his interactions.  He was given privileges but with monitoring of his interactions.  He also sued since he only got a one year renewal instead of two.  The court stated the one year is merely an inconvenience and permissible under the Title VII.  This is another case that should never had been filed.  He should have taken the one year and kept his nose clean.     

Ellison v Sequoia Hosp
Ca Ct App

In an interesting case Dr. Ellison, an orthopedic surgeon, was initially proctored and passed his procotrship for lower extremity cases.  He was retained on proctorship for upper extremity cases.  He was then found to have done upper extremity cases without a proctor and this along with problems in some lower extremity cases came to the attention of the MEC.  In reviewing Dr. Ellison it was found that some of the past answers to questions regarding his residency and boards were not forthright.  The MEC recommended that he have concurrent board certified orthopedists assist him on all cases and have a separate proctor present.  He asked for and received a peer review hearing.  The MEC at the hearing changed its recommendation due to the combination of the quality concerns and the physician's less than truthful answers to the questions regarding his past.  The peer review committee recommended continued board certified assistant surgeons as the only measure but made special comments about the physician's lack of candor.  They felt what was done was done and to re-look if candor was an issue in the future.  The physician and the MEC both appealed the decision to the Board.  The Board remanded the issue back to the Peer Review for more deliberation on the candor issue.  The Peer Review body reopened the hearing and the physician refused to participate with the issues of candor.  The Peer Review Body reiterated it's past recommendations.  The Board overruled the Peer Review body and terminated the physician's privileges as was specifically allowed in the bylaws.  The physician sued for the board putting in harsher penalties than the peer review committee.  The court agreed with the hospital on all counts.  The court stated that the board should give differential evidence to the peer review board if the decision is supported by substantial evidence.  The board can overrule the peer review body if reasonably concluded by the facts.  This was the case here where the physician was not truthful in the responses to questions.  The bylaws specifically allowed the board to affirm, modify or reverse the peer review recommendation.  Dr. Ellison attempted but was not successful in attempting a Mileikowsky where the board could not act if the full level of peer review was not completed.  Here, Ellison had a full review and the termination is legitimate.

Perry v Rado
Wash Ct App

Perry, a gynecologist, entered into a consent agreement with the hospital that he would not do any surgery without a monitor.  He assisted in a case of his associate and during the case a bowel perforation was found.  Dr. Perry repaired the injury and was removed from the staff for violating the consent decree.  The associate was not allowed to be the person supervising.  This to me seem harsh as he truly was only assisting in the surgery.         Top


Gibbs v US

The family of a patient in an alcohol rehab VA hospital had an aortic aneurysm that was operated.  During the surgery the patient lost about 20 units of blood.  He did not wake up after surgery and an abdominal CT scan showed a sponge left in the abdomen.  The patient had a positive blood culture but the sponge cultured negative for bacteria.  There was negligence in leaving a sponge but the sponge was not the cause of the patient's demise since it cultured negative. 

Zander v Craig Hosp
D Colo

In the continuing was of fighting everything and wasting money Craig Hospital attorneys tried to keep out of a med mal case the non privileged general hospital policies.  They of course lost as all were outside the peer review privilege.        Top


Woodley v Aetna
WD Wash

Woodly sued Aetna for multiple things under ERISA.  Aetna wanted a summary judgment which was denied.  The denial was based on Aetna's poor attorney work leaving out a crucial piece of evidence.  This left that the case would be heard de novo and that there would be a heightened standard against Aetna. 

Massachusetts v Insurers

The judge ordered Pilgrim and Fallon Insurers to use the 2009 schedule when signing up new members under the infamous Massachusetts plan.  The judge stated that the insurers had not used up their administrative appeals before suing the state.        Top 

Fraud and Abuse

US v Houser

Mr. and Mrs. Houser of Rome, Georgia, were accused for billing for services not given in two nursing homes.  They also were accused of income tax evasion.  The state eventually closed the nursing homes.  The problem was so bad that the employees whose checks bounced were forced to buy food and supplies for the residents.  The Housers were accused of bilking Medicare out of $30 million.

US v Myint

Dr. Toe Myint of Detroit was sentenced to six years in prison for Medicare fraud.  He was also ordered to pay $3.1 million in restitution.  This was for faked billings at a purported infusion center.  To date 11 people have been convicted in this scam.        Top


Phaedrus v Kaiser

The San Francisco Business Times reported on a suit by Phaedrus Internet Development against Kaiser for breach of contract for leaving about 100,000 patient images on Phaedrus without a business agreement as required under HIPAA.  The business is owned by an ex Kaiser physician who signed a consent not to sue for wrongful termination after he was let go.  He wants to bring Kaiser to the attention of the Feds for their HIPAA breaches.  Kaiser is not denying anything but are stating they are being sued beyond the statute of limitations and that there was an oral contract.  Nice try to prove an oral contract where a written one was required.        Top


Perinatal Med Grp v Children's Hosp.

PMG had a contract to provide NICU services with Children's Hospital.  A competing hospital (Community) opened a NICU and some of PMG's physicians worked there as well as at Children's.  The contract ran out between PMG and Children's and one of the conditions of a new contract was that no PMG physician would work at Community nor refer any patient to anyone outside of Children's Specialty Medical Group.  PMG refused and were removed.  The medical group sued under both Section 1 and 2 for the Antitrust Act.  The hospital attempted summary judgment but was rebuffed by the court.  The trial may go ahead.  The Court stated that the medical group was a separate entity from the hospital and therefore could sue.  There was also a potential for monopolization which was not addressed by the hospital attorneys.        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.