February 1, 2003 Recent Legal News



Fraud and Abuse

Peer Review





Clay v Holy Cross Hosp.
7th Circ.

Dr. Clay sued for wrongful termination because she was pregnant, a violation of the Civil rights Act.  She attempted but failed to prove that the hospitals reason for terminating her was a sham for her being pregnant.  She was initially hired to work for a subsidy of $100,000.  She was expected to build her practice until she no longer need the subsidy.  There was a 90 day bilateral termination clause.  The hospital was running out of money and needed to cut some physicians.  They evaluated all the practices and found nine total poor performers, including Dr. Clay.  They were all terminated.  Dr. Clay attempted to prove that the real reason for her firing was her pregnancy but the court stated the real reason was her lack of drive, work ethic and dedication.  

Skinner, MD v Trident Medical Center
S. Car. Trial Ct.

Dr. Skinner sued the medical center for slander and won $30 million.  He set up an outpatient primary care practice in a hospital clinic and was fired four months later.  Dr. Skinner had made himself disruptive by stating the facility was in poor physical shape, He also complained about a nurse who had been at Trident for a long time and about their billing practices.  Dr. Skinner actually won $1500 for his whistle blowing and the clinic lost $5000.  He had a patient list of 1300 patients and the only copy was kept by the hospital.  Another physician told patients that he did not know where Dr. Skinner went.  A former practice manager stated to patients that Dr. Skinner had stolen equipment.  None of the above was true.  He was awarded $250,000 for his patient list, $10 million for the negligent supervision of the employee who slandered him and $20 million for defamation with $10 million in actual damages and $10 million in punitives.  Dr. Skinner could not get a job as a physician due to the slander and now works in a law office once a week reviewing malpractice cases. He had originally offered to settle for $425,000.  

Fuste v Riverside Healthcare
Va. Supreme Ct.

The Plaintiffs sued for defamation for telling others they had abandoned their patients and that there were competence concerns.  The Court stated that if the charges could be proven and were false this could be libel per se.  Any statements that the doctors were uncooperative or unprofessional were merely opinion and could not be used for defamation.  The defendants were not protected under the peer review laws since the statements if proven were made with malice. 

Morales-Villalobos v Garcia-Lorens 
1st Circ. (Puerto Rico)

 The plaintiff was fired by the provider with an exclusive contract to provide anesthesia services at local hospitals.  The plaintiff sued that the exclusive contract was a matter of antitrust and the contract should be void.  The employer filed for summary judgment for lack of geographic market.  This was rejected and the motion to dismiss was denied.  There are only two hospitals in the region and she was barred from both.  The surgeons asked that she be allowed to give anesthesia for their patients but were denied.  The Court stated that she may be one who has antitrust standing and be injured by a group boycott.  This needs to brought out in trial court.   Top


Magellan Health Care

Magellan Health Care, the largest managed mental health plan in the country, is to file for Chapter 11 bankruptcy.  They borrowed money to grow the business and can not pay it back.  The use of Chapter 11 will allow the providers to be paid but the investors will lose their money.  So sad.        Top

Fraud and Abuse

Realyvasquez v California
Administrative Hearing

Dr. Fidel Realyvasquez, the Redding cardiac surgeon who has been accused of fraudulent billing of MediCal lost his appeal to the state Department of health Services to provide services to MediCal patients.  The physician continues to treat those patients on MediCal who need his services but he is doing it for free.  The doctor and his partner will have more charges filed by the Medical Board later but to date have been convicted of no wrongdoing and have only been the victims of hearsay.   

US v Maury Regional Hospital

The Columbia, Tennessee hospital paid $2 million to the feds for overcharging Medicare.  This was for upcoding pneumonia codes and was a whistleblower case.  The whistleblower will get $350,000.  The hospital attempted to self report a $1 million overage but were told it had already been reported.        

US v Johns Hopkins & Methodist Hosp. 

Johns Hopkins of Baltimore and Methodist of Memphis Tennessee have been accused of using and billing for experimental cardiac devices.  These are the latest in the massive whistleblower suit against multiple hospitals in the country.  Thirty one have already settled for a total of $42 million.     

US v Cleveland Clinic

The Clinic paid $4 million for claiming money for services done by medical residents were actually done by attendings.  The clinic's documentation was not complete enough and led to the fine.   

US v Couser, MD

The US is investigating another prominent University of Washington physician for potential Medicare and Medicaid fraud.  The investigation is centered on a nephrologist, Dr. William Couser.  The question is whether he billed for dialysis procedures when he wasn't present, a violation of the federal laws.  The University has spent $15 million defending physicians and improving compliance.  Last year a well respected neurosurgeon Dr. Richard Winn resigned after pleading guilty of obstruction of justice.        


 The government states that they have overpaid the LSU hospitals by $290 million over the past seven years.  Even though the government was the dumb bunny who paid, they want their money back.  The money is for the uncompensated care program.  LSU is contending that they are owed money.  They believe they are owed money for other programs that the feds have not paid on and they will come out ahead in the long term. 

US v Columbia Univ.

 Columbia University admitted no wrong but paid the fed $5.1 million for false billings.  It was alleged that Columbia billed for OB services for physicians that never performed them.  The services were done by midwives, residents and others who were not eligible for payment by Medicare.  The University also got hit with a five year review of its billing processes.

US v Nahas, MD

 New Jersey's Dr. Fredrick Nahas is not only a crook but a dumb one.  He was sentenced to one month in prison, two months of intermittent confinement and three months of home confinement as well as being fined $20,000 for obstructing justice.  The doctor concealed hundreds of files from investigators by moving them to a room at a motel and an airplane hanger he owned. Top

Peer Review

St. John Reg. Cntr. v Dally
Mo. Ct. App.

This is a breach of contract matter between St. Johns and MJR, a radiology group, over a loss of an exclusive contract. Part of the reason for the loss of the contract was stated by St. Johns as MJR's failure to participate in quality and peer review.  In the deposition of a hospital employee, the hospital allowed some peer review material to be used.  The Court stated that while peer review is sacred, St. John's screwed up and waived the privilege.  The documents may be introduced but may be redacted if necessary.  This is another case of a hospital that needs a new set of attorneys.        Top


McDougal v United Hospital
Case not yet filed

In an amazing case, a 46 year old woman had an abnormal mammogram.  A biopsy was performed and she was told she had a virulent form of cancer.  She underwent a bilateral mastectomy.  Postoperatively, she was told there was no cancer in the specimen and the lab had made a mistake.  Her biopsy specimen had been mixed up with another patients.  The spokesman for United spoke on TV to state they have made changes so this mistake could not happen again.  The pathologist's insurance company has paid all the medical expenses and her lost wages and will continue to do it for an indefinite period of time.  She needs several more reconstructive surgeries and then will decide how much to sue for.   

Infectious Disease in Pittsburgh

Allegheny General Hospital had a bunch of infections several months ago.  This included one death.  The hospital traced the source to the Steris equipment used to sterile bronchoscopes.  There was a problem with the filters that allowed pseudomonas bacteria to flourish.  Steris recalled the faulty connectors earlier last year  but the hospital denies getting the notice.  They state they only received a marketing letter for new connectors at a discount.  This should make for an interesting product liability case.        

Flatt v Kantak, MD & Meritcare Medical Center
Trial N. Dak.

In a fascinating and what sounds like a suit that deserves to be lost or never get to trial, Flatt is suing because the son had a circumcision.  The circ was asked for by the family and performed without any untoward effects.  They are suing for diminished sexual sensation injury.  The judge is letting this farce go on since there is a potential for uninformed consent.  The plaintiffs believe that the consent should have included a full medical briefing on all the benefits and risks of the procedure.  This is obviously not about the case but about a political agenda and is the wrong way to forward this agenda. 

Vanstell v Macaskill
Mich. Ct. App.

The plaintiff made an appointment with a physician and then called the hospital to make sure the physician was on the staff.  He was and the patient kept the appointment with the doctor in his office, in a building  owned by the hospital.  The patient after being seen had complications and sued the doctor and hospital.  The nub of the case was whether the patient looked to the hospital or the doctor for care.  They ruled in this case there was not any evidence to link the patient's selection of a physician with the hospital.         Top


San Joaquin Hosp v PacifiCare
CA Ct. App.

In this unpublished case, the court of appeal overruled the trial court who dismissed the claim against PacifiCare.  The facts were that during a time of negotiations PacifiCare told its members they could use San Joaquin Hospital.  PacifiCare then would not pay for the care since the negotiations broke down.  The hospital sued on for breach of an implied contract and quantum meruit ( value of the services rendered).  The Appeals Court stated that the California Knox Keane Act that regulates HMOs does not take precedence over simple state law claims.  Back to trial.        Top


Fla. v Souaid, MD

Dr. Victor Souaid a urologist in Fort Lauderdale was indicted for diluting the drug Lupron.  He then is accused of selling the excess to others for a $1,5 million profit.  The dilution occurred in 30 patients and the indictment is a 60 count one including health care fraud, product tampering and the wholesale distribution of prescription drugs without a license.  The physician denies all charges.  He does give Lupron after surgery which is controversial within the medical community.        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.