December 1, 2011 Recent Legal News




Peer Review and Employment




US v Francis-Lane

Dr. Millicent Francis-Lane of Monroe, North Carolina has agreed to pay $950,000 to settle allegations that the Ob/GYN knowingly billed for services not provided and upcoding.  The payment includes a substantial penalty plus reimbursement.  She is also to hire a practice monitor for five years. 

Sierra Nevada Cardiology v Renown Health 

Fourteen cardiologists from the Sierra Nevada Cardiology have sued Renown of Reno, Nevada, for fraud and using bait and switch tactics.  The compensation promised was not in the original contract and they could not get a copy of the agreement.  They also claim the former Renown executive played both sides in the negotiations.  He is now the business development administrator for Renown.  Renown is also being investigated by Nevada and the FTC for their partnerships with cardiovascular groups.  The cardiologists state that if they leave Renown they will have to move for employment.

EEOC v Garfield Med Ctr

Garfield Medical Center of Monterey Park, California, will pay $550,000 to settle sexual harassment and retaliation law suits against the entity by ED staff.  They are also putting into reserve an additional $100,000 for future claims.  The allegation was the hospital was told that a emergency room male admitting representative employee sexually harassed both female employees and patients.  The hospital responded by firing the person who reported the harassment.  The harassed employees either were fired or left due to a hostile work environment.  The money will go to the former employees.  

US v Masood
D New Jersey 

Dr. Yousuf Masood of Warren, New Jersey was sentenced to 43 months in prison along with a restitution of $1.8 million.  His wife and office manager plus two others who posed as physicians got five years probation.  He was the top prescriber of drugs to Medicaid patients in the state.      

US v Washington

Dr. Gwendolyn Washington of Southfield, Michigan, was sentenced to 120 months in prison for illegally receiving bribes from home health agencies, healthcare fraud and illegal prescription writing.    Top


Patients v Sutter Health

Sutter has a computer stolen with the medical information of over 4 million people.  The computer was negligently not encrypted.  This included both Medical Foundation patients and those of Sutter Physician Services.  They should get a big fine for this.  

Clients v Sawiciki & Phelps
To Be Filed

Physicians and hospitals are not the only negligent people, attorneys now come in as well.  The Minnesota firm apparently had allowed an employee to take paper from firm to her child's school for their use.  The problem was the paper had the information about clients including medical information on it.  This is a HIPAA violation as they are business associates of a medical institution.  An interesting side note is that after the article was printed in the paper there were 63 comments.  None of them were about the breach of security.  They were all about the use of paper from parents in school and whether or not teachers were overpaid.         Top 


Prime Health v Kaiser

California's Prime Health has filed an antitrust claim against Kaiser and SEIU.  The claims is that the two have colluded to drive Prime out of the Southern California area.  Prime and Kaiser have problems that date back many years.  Kaiser has sued Prime for admitting patients and not sending them to Kaiser facilities.  Prime has sued for $100 million in monies owed.  Prime states that Kaiser had given wage concessions to the union for their efforts to campaign against Prime.  Prime does not have unions.        Top

Peer Review and Employment

Zoher v NHC Healthcare
MD Fla

A federal judge dismissed via summary judgment a physician's suit against a hospital that refused him privileges.  He had both federal and state claims.  The court stated that there is no private right of suit under HCQIA.  He seems to forget all the suits around the country and the right to sue for injunction, not damages.

Etter v Bibby
D Co

Etter came to the ED and was sent home.  The following day returned to the ED being worse.  She was transferred to another hospital but died.  The suit was for EMTALA and negligence.  The family wanted the peer review information on the case and the hospital refused.  The court ruled the peer review information could be had for the EMTALA claim but not for the state claims of negligence.

Verska v St. Alphonsus
Idaho Supreme Court

Dr. Verska is an orthopedic surgeon who competes with the hospital.  The hospital found his care lacking and terminated his privileges.  He went through peer review and apparently won his case but the Board ruled otherwise.  He sued to get his privileges back and for state court damages for defamation.  He requested the peer review records for his termination.  The hospital refused and he sued for them.  The case got up from the trial court directly to the Supreme Court who ruled that the law says that no one may get peer review records not just med mal patients.  It is interesting that this hospital won this small point and lost $52 million for screwing their physician partner in a MRI deal.   

Patients v Miami Veterans Hospital
To Be Filed

Miami VA Chief Mary Berrocal has been removed from her position due to the poor colonoscopy sterility at the hospital.  The VA found people with HIV, hepatitis C and B.  She will be reassigned to another VA in some capacity.  They do not die they just get transferred.

Kaiser & Permanente Medical v CNA

The San Francisco Business Times is reporting that Kaiser Health Plan and The Permanente Medical Group (Kaiser physicians) are suing the California Nurses Association for going on a one day strike.  There is a contract that apparently forbids a strike during the life of the contract.  The nurses at Kaiser went out as "sympathy" for other nurses who were going on strike.     

El-Attar v Hollywood Presbyterian
Ca Ct App  

 Although this case was reported a while ago in this section, it is now being re-reviewed due to an article in AHLA Weekly newsletter from November 23.  The writers discussed the case as turning credentialing upside down.  I do not agree.  I think the case was rightly decided.  The facts are that the physician was involved in criticizing the hospital for poor care.  The Board then convened a committee to review the care rendered by the medical staff.  The Board never explained why they did this.  By coincidence? the committee found problems with El-Attar's work and the Board asked the MEC to peer review him.  The medical staff refused and the Board then decided unilaterally to call for a peer review.  The Board contrary to the bylaws picked the Hearing Officer and Hearing panel.  When the peer review was initiated two of the panel resigned immediately and a third was removed for cause.  These were replaced and then there were 30 sessions.  The peer review committee agreed with the Board.  The physician appealed to the courts and the court of appeal overturned the peer review decision due to bias against the physician and not following the medical staff bylaws.  Only the medical staff may pick the peer review committee and the hearing officer under the medical staff bylaws.  The board exceeded its ability by appointing the committee and potentially biasing the action.  The Board has asked the State Supreme Court for a review of the case. 

Nurses v University Of Medicine of New Jersey

Twelve of the sixteen nurses working in the outpatient setting at the hospital have filed suit against the hospital for abruptly changing policy on patients having abortions.  The hospital used to allow nurses etc to not work on these patients if they had moral or religious reasons.  Now, the hospital states that while the nurses still do not have to assist in the abortion they do need to help with the pre and post operative care.  The two sides differ on the meaning of the federal law that states the nurses do not have to participate.  The hospital has said they will transfer nurses that do not agree to care for the abortion patient.   

Zawislak v Memorial Herman Hospital System
SD Texas

Memorial Herman again lost a summary judgment to a physician terminated for whistleblowing.  Dr. Walter Zawislak reported to the emergency room committee that on two occasions the on call trauma surgeon transferred a patient due to being either unavailable or unable to care for the patient.  After the report the doctor found himself peer reviewed and nothing done about the EMTALA problem he internally reported.  His privileges were removed and he was reported to the NPDB.  He wrote the Secretary requesting removal of his report and had not received a reply.  After having his privileges removed he sued the hospital for defamation and retaliation.  The court agreed with the physician stating that he presented enough evidence to overcome HCQIA and also did enough to overcome the bogus claim of the hospital that he did not exhaust his administrative remedies. This is another hospital that physicians should be wary of applying for privileges.      Top


Garcia v Sebelius

Dr. Marco Garcia worked in Los Angeles at a sleep clinic.  An audit was conducted and found that the services were not supported by the records.  Then it was found that the address was wrong.  The carrier then went after the funds paid and an ALJ ruled for the carrier.  At no time did the physician attempt to justify the services as reasonable and necessary.  The court stated that it is expected that the provider is familiar with the Medicare rules and ruled also that Medicare was entitled to a repayment of the funds.   

Florida v Morris 

Oneal Ron Morris, a born male who identifies as a female posed as a physician.  She injected herself and others with a concoction of cement, flat tire sealant, and mineral oil to reshape their bodies.  The other people believed she was a plastic surgeon.        Top


Smith v North Shore Med Ctr

Mr. Smith entered the Miami, Florida, hospital for dyspnea and stomach problems.  The nurse was to give the patient a shot of Pepcid but gave him pancuronium, a lethal muscle relaxant.  He had respiratory shut down but was revived.  He died a month later from the event.  The nurse continues to work in ICU at the hospital.

Patient v Massachusetts General Hospital

An unnamed patient and the hospital settled a law suit for malpractice due to death after alarms were ignored.  This was the sentinel case for alarm fatigue where hospital personnel were ignoring alarms that went off all the time.  The settlement was for $850,000.  Another case of a failed monitor was just filed against the same hospital.  Sounds like a place one would not like to be a patient.    

Garcia v Allergen 

 Dr. Julio Garcia, a Las Vegas plastic surgeon has sued Botox maker Allergen for packaging the drug in large vials and encouraging multiple uses from the same vial.  It is packaged in 100 unit vials and most patients take 20 units.  The drug reps recommend to the physicians that they use the same vial on multiple patients, a process that has been condemned.  Recently the company has started packaging in 50 unit vials.  This is still too much and keeps the costs high as the remainder must be tossed.    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.