August 15, 2016 Recent Legal News




Peer Review and Employment



US v St. Joseph Hospital

Te Syracuse hospital agreed to pay $3.2 million to settle allegations that it cheated on its mental health program.  The feds believe that the hospital did not use qualified staff to evaluate patients for their CPEP program and billed as if they had. The whistleblower will get over $500,000.

US v Ahmed

Dr. Syed Ahmed of Long Island was convicted of fraud and money laundering.  He billed for I and D services that he did not perform.  He billed over $25 million in false claims and received $3 million as payment.

US v Alonso

Three more Miamians are going to jail for Medicare fraud.  Jorge Lorenzo, Yahima Pardo and Roberto Alonso were all sentenced to jail time and to pay restitution of $40 million.  They all participated in shell games of home health agencies and non existent patients.  

US v Genesis Healthcare

The nursing home operator agreed to pay $52 million to settle allegations that they billed for hospice services in Nevada, provided inadequate staffing at some facilities and violated Medicare rules for physical therapy.  

US v Easton Hospital

Easton Hospital agreed to pay $325,000 for billing for inpatient care on patients that should have been outpatients.

US v Duffy

Dr. Tressie Duffy of Martinsburg, West Virginia, was sentenced to a year and a day in jail along with a fine of $18,200 for pleading guilty of seven felonies for illegal distribution of oxycodone.  She had been in trouble prior for illegal oxy prescriptions.          Top


Patients v U California

UCLA has agreed to pay $8. million to settle two malpractice suits against Dr. Jeffery Wang and Medtronic.  The suit said the patients were injured in spine surgery and that the surgeon and the university did not disclose the conflicts of interest with Medtronic.  They paid $4.2 million to Jerome Lew and 4.2 million to Ralph Weiss who both needed addition al surgery for their recurrent pain.  The suit was for using the device in an off label manner without consent.

Esmond v ServiceMaster

ServiceMaster, the parent of Terminex, agreed to pay $87 million to the Esmond family for their accidental spraying of a banned spray in a condo below where the Esmonds were staying in the virgin Islands.  The family got neurotoxic poisoning and were in comas for several weeks.  The company had already paid $3 million to cover insurance deductibles and they have agreed to pay $10 million in fines and government costs.

Pawlowicz v Gentle Dental Services

The patient went to the dentist for a root canal and after the procedure was over the dentist looked for but id not find a dental file.  The patient went home and four days later had abdominal pains.  An x-ray showed the dental file which had to removed by surgery.  The patient got $675,000.

Aldana v Stillwell
Ca App Ct.

A paramedic supervisor drove an employer car to an accident to supervise and help if needed.  He collided with another car and was sued  17 months later for negligence.  The trial court ruled that the case needed to be filed less than one year under the medical malpractice laws. the appellate court ruled that whether the supervisor was acting within the scope of his employment was immaterial as the law only applies to actions suffered as a result of the provision of medical care to patients.  

Grenier v Stamford Hospital
D Conn

An estate of a patient sued the hospital for negligence and wanted in discovery documents protected under law.  However, this is a federal case so there is not an absolute bar to the privilege.  The court says that there has been a trend toward allowing the privilege in med mal suits and EMTALA claims.  This would allow more peer review discussion.  Therefore the court allowed the hospital claim of privilege.

Glaskox v George City Hospital
SD Miss

The plaintiff sued the hospital for transferring her in an unstable condition.  She had surgery at another hospital and when she had a complication she went to the defendant hospital who believed she should go to a higher level of care and the hospital that did the surgery.  She was transferred and ended up with a leg amputation.  The court said the dumb attorney did not comply with the state's requirement for a pre-suit notice and since this was not in conflict with EMTALA the suit needs to be dismissed.

Borrayo v Avery
Cal App

The patient sued her ortho for med mal and the physician filed for a summary judgment.  The plaintiff opposed the motion with an affidavit from a Mexican Orthopod.  The trial court disallowed the Mexican expert due to failing to show the applicable standard of care in the United States.  The Court of Appeals overruled and said the criteria is whether the expert has sufficient skill in the field of medical practice involved in the med mal suit.  He had shown he had sufficient knowledge.          Top



The FTC overruled an ALJ on a HIPAA case.  The FTC said the judge applied the wrong law when he stated the FTC had not proved that LabMD harmed patients.  The FTC said that the company failed to use an intrusion detection system ot monitor traffic coming thru its fire walls, had no employee security training and never deleted any of the consumer data it collected.  They exposed 9300 people to exposure to millions for 11 months.

Patients v Jefferson Medical Associates
To Be Filed

Patients had multiple unauthorized accesses by an individual.  He did it to show he can and did.  It points out the lack of security at the clinic.

Patients v Prosthetic & Orthic Care
To Be Filed

A hacker got into the records of the clinic and filched the information of many patients.  

Patients v Central Ohio Urology Group
To Be filed

A Ukrainian hacker uploaded about 100,000 documents.  Most of the files were internal documents not PMI but some was included.  The group had poor defenses and security as it was an easy hack.

Chen v Banner Health
Class Action Filed

Dr. Howard Chen works at Banner is suing Banner for credit protection and ID fraud monitoring for longer than one year.  Banner was cyber attacked with 3.7 million people's information put at risk.  The suit alleges negligence on Banner for poor security and failing to prevent the hack.  Banner says it blocked the hack.

Patients v Blue Cross, Blue Shield of Kansas City
To Be Filed

About 790,000 patients have been notified that their information was breached.  They did not state what was the cause of the breach but did offer two years of protection.

Patients v Carle Health
To Be Filed

The Urbana, Illinois, system says that the records of almost 2000 people were accidentally placed on line where they could be viewed by other Carle vendors who had no right to see them.  

Patients v Marin Medical Practices Concepts
To Be Filed

The billing agency was hacked and paid a ransom to get the information unlocked.  It is unknown if any data was stolen.

OCR v Advocate Health Care

Advocate has agreed to pay a fine of $5.5 million for their lax security that led to many patients being put at risk of identity theft when laptops were stolen.  Hospitals need to understand the need to have security systems in place for all contingencies.  Til now they just don't get it.

Patients v Premera Health
D Ore

The class action case was dismissed on narrow grounds but could be re-filed after the deficiencies were corrected.  The class is 11 million people.        Top

Peer Review and Employment

Buchheit v Lakeland Health System
WD Mich

The physician had his privileges terminated and went through a full hearing that confirmed.  He sued for due process and of course lost.  When will the physicians learn?  

Elkharwily v Franciscan Health
WD Wash

In another physician suit the attorney filed a motion to compel for all email and text messages concerning the physician.  The court ruled this was burdensome but if the physician wanted to pay the hospital in advance for the information that is stored on tapes that would be OK.  $$$flying out the window

Nam v Regents of the Univ. of California
Cal Ct App

In an interesting case that I love the court ruled against the University who tried to get rid of the suit by a special motion to strike based on the anti-SLAPP statute in California.  The court said the resident's claims of sexual harassment and retaliation were not protected under the statute.  The case continues.

Meister v Avera Marshall
Min St App

The physicians at the hospital sued the hospital board for unilaterally amend and repeal the medical staff bylaws.  The lower court ruled that this was permissible for the Board to do so.  The appellate court agreed with the lower court even though the state high court agreed that the bylaws were a contract.  Thankfully this only applies to Minnesota and the one hospital that is dumb enough to alienate its physicians.

Eaves-Voyles v Almost Family, Inc.

The nurse had lodged multiple complaints with the powers and was then terminated and sued.  The company was ruled private and therefore not under the Whistleblowers Act.  So, she lost there but won over the hospital regarding her wrongful termination claim.  Her case goes forward and a settlement is in the offing.        Top


Partner's Healthcare v CMS

Partners Healthcare screwed up when they misfiled paperwork for Nantucket Cottage Hospital.  If filed correctly the hospital would have gotten higher reimbursement.  CMS said since they missed the filing deadline they are screwed again and will not be allowed to amend their report.

Sherman v HHS
DC Conn

The court certified a class action against HHS for having a secret policy to deny Medicare claims at the first two levels of appeal.  The plaintiff is the executor for the estate of another who passed away waiting for the appeals.  He had been denied continuation of home skilled nursing services.  The court ruled the case is for challenging the validity of the policy not how the policy was applied therefore exhaustion of administrative remedies is not needed.  Should be an interesting case if it ever goes to trial.

Texas v US
DC Texas

Several states sued the feds to enjoin the feds from enforcing a rule that the states must pay Medicaid managed care organizations via higher capitation rates the health insurance providers fee.          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.