May 1, 2014 Recent Legal News





Peer Review and Employment


US v Toumey Healthcare
SC Fed Ct

The court ordered the system to pay $70 million while it was waiting for its appeal to come before the circuit court.  The system attempted to force the government to trial and the government said OK.  The feds won a judgment of $237 million for the system's false claims and paying physicians for referrals.  I doubt that other systems will follow suit. 

US v Acadiana Cardiology

The cardiologist who owns the Cardiology practice had been indicted, tried and convicted of 97 counts of fraud.  He now wants the case tossed because the government did not have the "requisite" 1500 forms.  The court ruled that direct proof of fraud is not required and substantial circumstantial evidence is enough.  The doc lost again.

US v Sabit
ED Mich

The neurosurgeon Dr. Sabit is under investigation by the government for implanting unnecessary spinal devices made by Reliant Medical.  The feds asked for via subpoena the medical records of the patients who received the spinal implant, the oral taped testimony of the physician's interview with the California Medical Board and all emails between the physician and Reliant for five years.  The court stated the first two can be easily obtained and are specific.  The emails would require effort by the physician and may be considered against the 5th Amendment of self incrimination.

US v Batra

Dr. Devender Batra of Ohio Valley and his cardiology practice will pay $1 million to the feds for having two hospitals file false claims to the feds.  The claims were for prohibited referrals due to a compensation arrangement between the hospitals and the practice.

US v Qandil

Dr. Basil Qandil of Dearborn Heights, Michigan, was found guilty of 34 counts of fraud for billing all new patients for pulmonary studies not needed as well as running a pill mill.  Incidentally, he transferred about $1.5 million from the US to his bank in Jordan.

US v Terrell

Podiatrist Ilene Terrell of Fredericksburg, Virginia, was sentenced to 5 months in prison, 5 months of home confinement and two years of supervision after she lied repeatedly to the grand jury investigating her fraudulent use of Orthofix bone stimulators.  She ordered them for patients that did not meet the guidelines for payment and doctored her charts with the help of the Orthofix distributor.  Many Orthofix people have had felony charges against them with fines and prison sentences with this scheme.

US v Colasante

Dr. Ona Calasante of Gainesville, Florida, was indicted on health care fraud for charging the feds full price for drugs but gave cheap substitutes.  She also was accused of doing unnecessary tests and billing for therapy never done.  She is a low Medicare biller and states she was forced to close her office in 2011 due to a FBI raid and freezing of her bank accounts.

US v Babaria

Dr. Ashokkumar Babaria, a radiologist in Orange, New Jersey,  was sentenced to 48 months in the slammer along with repaying $2 million and fined $25,000 for heading a scheme where he and his practice paid physicians for referrals. To date 17 individuals have been convicted on accepting bribes for referring patients to this facility.

US v Hochhalter

Donald Hochhalter of North Dakota is to repay $37,000 and be fined the same amount for lying about his mother's finances.  He stated that his mother had less than she did in order for Medicaid to pay for her nursing home care.        Top


Patients v Children's Hospital
Filed and Settled

Patients have filed and some have settled with Children's Hospital in New Orleans over an outbreak of Mucomycosis, a deadly fungal infection usually found in soil.  The fungus was on the linens the children slept on in the hospital and may have come from the linen cleaning people.  This occurred in 2008 and 2009 but has recently been reported in an article in a pediatric medical journal.  

Moran v Conn

Moran fell and was transported to a local hospital that did appropriate studies.  they found a fractured rib with the broken end next to the aorta.  The patient was transferred to the Mecca, Mass General where nothing was done until she coughed and punctured her aorta.  She died.  Dr. Alasdair Conn and Dr. George Velmahos agreed to pay $4.5 million to the survivors.

De Jesus v Al-Abed

Maria De Jesus was pregnant and had abdominal pain. She had surgery for appendicitis at Queens Hospital by trainee Dr. Al-Abed who had been at the hospital for all of three weeks.  There was heavy bleeding and he removed the ovary instead by mistake.  His supervisor had told him he would be around but instead went home or was eating lunch.  The patient died 19 days later on the OR table following a miscarriage and during repeat surgery for appendicitis.  The cause of death was ruled sepsis.  A tribunal will now decide the fate of the physicians.  In my opinion the trainee should not be punished but the supervisor should as should the hospital for not calling the supervisor.

Patients v Percy Hospital
Filed and Settled

In a very strange case a radiology technician at the hospital had personal problems and became overwhelmed at her job of doing mammograms.  So, she decided that 1289 studies would just be negative and forged the radiologists name.  Of course, not all were negative and some women have died and some others are living with cancer.  She has been convicted and sentenced to a whole six months in jail when space becomes available as well as a $12,000 fine.  She has no money.  Multiple civil suits have been filed against her and her employer, Percy Hospital of Percy, Georgia. Several have already been settled.

D.B. v Safe Sedation, LLC

D.B. underwent a colonoscopy and his cell phone was inadvertently left on record and present in the suite. It picked up the discussion of two of the physicians in the room.  According to the plaintiff they mocked him and caused him severe emotional distress.  The LLC was sued not the physicians.        Top


Zogenix v Massachusetts

Zogenix is the maker of Zohydro, a very powerful pain medication.  The state tried to ban it because of it's significant potential for overdose and abuse.  The court stated that the FCA has declared the medication safe and effective therefore the state had not the right to ban it.  The rights of those who needed the pure hydrocodone overruled the harm to others.  After the state lost the case they are trying another venue.  The prescribing physician will have to complete a risk assessment and pain treatment agreement with the patient before prescribing the drug.  The agreement would require screening an monitoring of the number of pills.  The physician will also be required to participate in the state Prescription Monitoring Program which will monitor how often he prescribes the drug.  There may also be more strings by state agencies.

Burton v Blue Shield of California

Lisa Burton wants a mammoplasty and some eyelid work done.  The insurer said nope.  She found a shyster who made this into a class action suit.  I hope Blue Shield wins and the attorney and plaintiff lose mucho bucks.        Top


Collins v Dartmouth Hitchcock Med Ctr

Collins was hearing impaired and after a cochlear implant he woke up deaf.  The hospital and the surgeon did not provide the patient with an approved interpreter for eight hours post surgery to tell him he was now deaf.  The law requires an interpreter and the surgeon attempting to go through the family was not enough.  The court called the defendant physician and hospital reckless and malicious or oppressive.  Not nice for the hospital.

FTC v ProMedica
6th Circuit

The FTC won again.  They challenged ProMedica's acquisition of St. Luke's Hospital in Lucas County, Ohio.  The agency stated the purchase made for antitrust for having the potential to illegally raise prices.  The court ruled that none of the arguments against the FTC were strong enough to overturn the order to dissolve the deal.  Prior to the deal ProMedica already controlled just under half of the acute care in the county.  After it would control almost 60%.  They will appeal to the full Circuit before going to the Supreme Court.        Top

Peer Review and Employment

Robinson v University General Hospital

Two abortion performing physicians were removed from the Dallas hospital medical staff four days after the 5th Circuit declared Texas' law requiring abortion physicians have near-by hospital admitting privileges.  They immediately sued for an injunction forbidding their removal from the staff and won a temporary restraining order until a full hearing on April 30.

Pedowitz v UCLA

Dr. Pedowitz, an orthopedic surgeon and head of the department, sued the university for retaliation.  The trial was at the closing arguments when a settlement was made for UCLA to pay the physician $10 million.  The doctor had lodged many complaints with the University about colleagues who had financial ties with medical device makers that may influence their care of patients to taint research.  He states that he was then pressured to step down at chair of the department which he did in 2010, one year have being recruited for the position.  He also states he was being denied referrals and prevented from participating in grants.  The doc is happy and the U is playing CYA.

Cohlmia v Cardiovascular Surgical Assoc.
10th Circ

Dr. George Cohlmia, a cardiovascular surgeon, had his privileges terminated at St. John's Hospital and he sued on antitrust basis.  He lost in the district court on summary judgment.  The 10th Circuit then on appeal affirmed that St. John's was shielded by HCQIA from all damages.  St. John then sued for attorney fees and won.  The 10th Circuit agreed that under the law the entire suit was frivolous and attorney fees were appropriate.

Hamilton Memorial Hospital v Toelle
SD Ill.

Dr. Toelle left his employ at the hospital in the middle of his contract to work for another hospital.  Hamilton filed suit for return of monies expended on him and for the recruitment of another physician.  The physician attempted a summary judgment and won on the causes of action relating to the employment but lost on the replacement physician costs.

Picard v American Board of Family Medicine
ED Mich

Dr. Picard sued for lack of due process, defamation and tortuous interference with business for taking away his board certification.  The board requires that all licenses be current and due to a snafu his was not but was later restored.  The board would not automatically restore his certification due to a requirement by the state that Dr. Picard needed to go to rehab.  The board filed a motion to dismiss and lost on the tortuous and due process arguments.  The defamation was dismissed since the statute of limitation had run, there was no publication and it was opinion to be assessed by those who heard it.        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.