August 15, 2014 Recent Legal News



Fraud and Antitrust

Peer Review and Employment




Morrison v Health Plan of Nevada
Nevada Supreme Court

Plaintiff is a member of a Medicare HMO (Advantage plan).  He was directed to a clinic by the plan and was infected with Hepatitis C.  He sued since the plan should have known the virus was present in the clinic.  He lost due to ERISA preemption. 

Greenblatt v Hoffmann-La Roche
NJ Ct App

Roche continues its overturning of awards for tot warning Accutane causes Inflammatory Bowel Disease (IBD).  The court ruled as have others that the question of whether Accutane caused IBD was tied to the decision by the plaintiff to take the drug, not to her doctor's decision to prescribe it.  The court goes on to say that a prescription drug manufacturer fulfills its duty to warn if it provides adequate warnings to the prescribing physician and it has no duty to ensure that the warning reaches the patient.

Gregory v Cott
California Supreme Court

A home health worker was hired by Mr. Cott via an agency to care for his wife who has Alzheimer's Disease.  She was injured while caring for the patient.  She obtained workers' compensation but also sued the employer for damages.  The homeowner's insurance company is footing the defense since the Cotts passed away last year.  The majority said that the ruling was limited to home health workers hired via an agency who may not now sue the patients or the families for damages.  Workers are warned of the risks and the injury was caused by a symptom of the disease.  Workers voluntarily assume the risk of injury in caring for patients with the brain disease.  This was a 5-2 decision.   

In Re Otero Hospital 
D NM Bankruptcy

The court said a group of people who claimed the hospital was guilty of negligent credentialing for allowing a surgeon to remain on staff after they knew the surgery he was doing on the back was experimental could go to trial since the facts were in dispute.        Top


Mercy Hospital v Wilson

 HIPAA has always caused hospital stupidity but this is over the top.  An audiologist at the hospital really does not know the law and neither does the hospital.  Wilson has a 7 year old son who is going deaf.  She takes pictures of him with her cell phone at his appointments to post to raise money for his expensive hearing aids.  The audiologist accused her of violating HIPAA by taking pictures of her son.  She went to the director of Audiology who detained her and ordered her to turn over her cellphone or be arrested for trespassing (she was there for her son's appointment).  At issue was in the background of the picture there was a small framed picture of the audiologist's son.  The hospital's statement showed their lack of understanding of the law.  She is not a Covered Entity and can do what she wants as she is not under HIPAA.  It is the hospital responsibility to ensure patient privacy but that does not extend to pictures on a physician's desk.  Mom is now suing the hospital for false imprisonment and emotional distress.  Dumb dumb hospital.

Patients v Bay Area Palo Alto Medical Assoc.
To Be Filed

In yet another failure of EHR, three desktop computers were stolen from the offices of the company.  The information on almost 3000 people has been stolen.  The records were encrypted but the Excel spreadsheet was accessible.

Patients v New Jersey Medical Center
To Be Filed

The hospital sent a disk with patient information to a billing company.  the disk never arrived.  It is not known if the disk information was encrypted.          Top

Fraud and Antitrust

US v Community Health Services

In a qui tam suit Community Health Services agreed to pay $98.15 million plus interest to the feds to settle allegations that they billed for inpatient services that they knew should have been billed as outpatient services as well as Stark violations.  The whistleblowers share has not been determined.

US v Tsai

Dr. Peter Tsai and his parents in Coal Grove, Ohio, have pled guilty of health care fraud.  The physician used his CT scanner owned by his parents to do unnecessary medical procedures and bill them to federal insurance.  The parents have already pledged $999,000 towards restitution and all will be sentenced at a later date.

US v Lang

Gary W. Lang, Hilton Head Hospital for VP of business development and later the CEO of Clearview Regional in Monroe, Georgia, has pled guilty to pay kickbacks to Clinica de la Mama to refer patients to the hospital for Medicaid OB deliveries.  The COO for Clinica, Tracey Cota, also pled guilty.  Mr. Lang did the same illegal act at Clearview.  This is a whistleblower case.

Keyzer v UC Davis
Jury Decision

Janet Keyzer, an administrative nurse researcher, realized research on San Quentin prisoners was being done without consent.  She told her supervisor and was then harassed and her husband, a part time employee, was fired.  She then went to the IRB which shut down the research.  She was then offered a contract position which she declined and was laid off.  She sued and the jury awarded her $730,000.  She is now employed as an administrative nurse at another hospital.

US v Bajonghli

Dr. Amir Bajonghi, a dermatologist in McLean, Virginia, was indicted by a federal grand jury for healthcare fraud.  He has been accused of performing Mohs procedures for benign conditions and billing for malignant ones.  He is also accused of having unlicensed people close wounds and do complex suturing and skin grafts.  He is accused of billing under his number for things done by nurse practitioners.  He also billed for the prep and reading derm slides which he did none of.        Top

Peer Review and Employment

Smith v Presbyterian

In always interesting cases, Smith, a physician assistant veteran with PTSD, was hired by the hospital.  After she worked for four days her urine test came back positive for marijuana.  She lives in New Mexico where medical marijuana is legal and she is a legal user of medical marijuana.  She was fired for the positive test and is now suing.  

Decesaris v Hallmark Health Emergency Physicians
Mass App Ct

In a head scratcher as to why an attorney would take the case and how it got to an appellate court, the plaintiff sued the employer of a physician who had a whole 10 day affair with the plaintiff.  She sued for emotional distress.  She was a patient at the hospital and after discharge they had the affair consensually.  She sued for negligent credentialing.  Nice to see a directed verdict.     

Powell v Fried
Ky Ct App

The Court of Appeals confirmed the lower court verdict of assault and battery against Dr. Robert Fried of Kings County Medical Center by Diane Powell, RN.  She states he kicked her in the leg leaving a bruise.  She also stated that he was aggressive toward her in the past.  She also sued the hospital but lost on that.  She was awarded $5000 in compensatory and $35,000 in punitive damages.   

Hendricks v Bronson Methodist Hosp.
WD Mich

The physician complained to the hospital that the ultrasound readings were against Medicare rules and for her trouble she had her privileges terminated.  She sued for qui tam and unlawful termination.  She lost the former due to poor pleadings and won the later.

Wong v Sunrise Mountainview Hosp.
Nevada Supreme Court

The physician sued the hospital after his anesthesia privileges were terminated.  He lost after the court found that HCQIA protected the hospital.  This was due to the physician not bringing up objections to the peer review process in the peer review process.  

Appleyard v Governor Luis Hosp.
VI Superior Ct

 In a case I was interested in from afar, Dr. Appleyard was terminated from the hospital in July for disruptive behavior.  She sued under a TRO to stop the termination and any reporting to the NPDB.  She is the only spinal surgeon in the area and won the TRO as the government hospital did not follow the law of the Virgin Islands.  She is to get a hearing for a preliminary injunction.    Top


US v Dawari

The government has accused Dr. Hayatullah Dawari, originally from Afghanistan and now in Philadelphia, of immigration fraud.  They believe he is using a book that he is sending back to Afghanistan as a coded message as to who to attack.  They also state he lied on his citizenship form by not checking the box that he was a member of the HIG, a terrorist organization.  He is being held without bail.

US v Baron

Dr. Joshua Baron of Chicago was sentenced to 70 months in prison for selling narcotics for sex.  He was a pediatric neurologist who liked sex and had a prescription pad.  He would solicit customers on Craig's List.  He has already lost his license and DEA license.      Top


Legaard v Providence Insurance

The court issued a plaintiff summary judgment in the case against the insurer.  The plaintiff sued to get autism care called ABA, an effective and mainstream but expensive treatment.  The insurer had denied the care under experimental but that was overturned by a panel of physicians.  They then denied it under developmental care.  The case was under ERISA and parity of mental and physical health.  The remaining question is who is actually going to pay for it.  Obamacare states that a new state mandate is paid for by the state.  Oregon passed a law mandating the coverage.        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.