June 1, 2012 Recent Legal News

Peer Review and Employment





Peer Review and Employment

Medical Staff v Avera

In an important case the medical staff of Avera Marshall Regional Medical Ctr. is suing the hospital for unilaterally changing their medical staff bylaws with little input from the medical staff.  The issue is whether or not the bylaws which were violated by the hospital are a contract or not.  It is well known that TJC states that bylaws can not be changed unilaterally.  Avera dropped it's Joint Commission status so as not to obliged to do the correct thing.  The court has ruled that no injunction is necessary but will hold a trial in June on the issue.  This is not the first time Avera has trampled on the medical staff rights.  It previously did so in North Dakota.  THIS IS A SYSTEM THAT ALL PHYSICIANS SHOULD STAY AWAY FROM.  THOSE THAT ARE ALREADY IN THE SYSTEM SHOULD LOOK FOR ALTERNATIVES.  THE SYSTEM IS PHYSICIAN TOXIC. I have never come out this strong against any hospital or hospital system in the past.

Mandel v Omidi

Four physicians who worked for the Omidi brothers have filed suit against them and their attorneys for fraud and identity theft.  The brothers own the infamous 1-800-Get-Thin clinics doing lap band surgery for weight reduction.  The suing physicians started getting 1099 forms stating they had received large sums of money but had never received the money.  The physicians also claim the brothers filed fifty fake corporations with the state in one day all with the same address.  This is just the latest suit against the brothers and the clinics.

Mejia v Roosevelt Island Med Assoc
NY App Div

Dr. Mejia sued the organization for transferring him from pulmonary med to internal medicine.  He sued on age discrimination and other causes.  He lost on all for the reasons that none were valid and even if valid the organization had good business reasons for the transfer.  Another example of a physician and attorney with poor judgments.

Nath v Texas Children's Hosp.
Texas App Ct

The physician demanded that the hospital and college divulge a fellow physician's PMI.  Not only did he rightly lose but was ordered to pay $644,000 to the defendants for the costs to defend themselves.  He appealed believing the fine should be with the attorney.  The court stated that either the attorney or the physician may be hit with the bill.  Therefore the order for him to pay was legitimate.  The court also said the suit was meritless and pursued in bad faith.  Again look to both the physician and attorney for being problems.

Gianetti v Norwalk Hosp
Conn. Supreme Court

This case started in 1984.  The plastic surgeon was denied re-appointment to the staff and sued due the hospital's breach of contract in their bylaws..  He won in trial court and was found to be a "lost volume seller".  He was entitled to lost income (profits) up to 1988.  The court of appeals agreed and the Supreme Court also agreed.  He gets $258,000 for that time span but no interest and no attorney fees even though it took 28 years to conclude the case.

EEOC v Christian Care Center of Johnson City, Tenn.

The Center did not act Christian like nor legally when they fired a LVN that was found to be HIV positive.  They said it was to protect patient health but all know universal precautions do this and that there has never been one transmission of HIV from a health care worker to a patient that was not on purpose.  I hope they have a lot of Christian money to spend.

Shure v Ford
Ky Ct App

The surgeon was recruited by the hospital and eventually had her privileges monitored and then she was not re-appointed to the staff.  She started going through peer review but it was found that she deactivated her Kentucky license.  Since that happened there was no reason for the hospital to finish the peer review.  The surgeon then sued the hospital for an injunction but lost.  She then sued for damages for notifying the Board and her patients.  She lost again since she sued people immune from suit under the state's peer review statute.  She had signed a release of information form when she joined the staff and she lost her due process claim since she voluntarily agreed to discontinue the hearing.

Fitzsimmons v California Emergency Med Group
Ca Ct App

The appellate court overruled the trial court which gave summary judgment to the Group.  This allows the case to go forward.  The doctor reported sexual harassment and then was terminated from her position as a regional director.  Originally she lost since the trial court said she was not an employee and therefore could not sue.  She was a partner which is like being employed and therefore the appellate court stated the suit could proceed.  She sued under a state FEMA law.        Top


Catholic Church v US
To Be Filed

The Catholic Bishops have threatened suit against the government unless Congress intervenes and stops the birth control edict of Obama.  They find no compelling government reason for their forcing payment for issues that is against their religion. 

California v Rodriquez
Trial Court

Mr. Rodriquez has active TB and refused to take his meds putting the community in danger.  He was arrested and will be forced to take his meds.  Ten patient stated he took large amounts of alcohol and methampehtamines and did not want to hurt his liver with the anti-TB drugs. Duh!         Top


US v Temple Univ

Temple University has agreed to pay a fine of $412,000 for their part in the fraud perpetrated by the former chief of ophthalmology.  He billed for care of patients he never saw and were handled by the residents.  Dr. Joseph Kubacki will pay $676,000 in restitution plus he was sentenced to seven years in the clink.

US v Ubani

Ezinne Ubani, RN, was sentenced to 97 months in prison for her part in a $97 million Medicare fraud scheme plus she along with the other co-defendants were ordered to pay restitution of $2.5 million.  She is the 7th person sentenced to date.  The problem was providing skilled nursing that was not needed and falsifying documents.

Gotlin v Lederman
2nd Circuit

The Cuicuit Court overturned a summary judgment in favor of the defendants and said there is enough evidence for trial.  The plaintiff sued the defendant physicians stating fraud for overstating the efficacy of their radiation therapy for pancreatic cancer caused the patient to undergo an ineffective and harmful from of radiation therapy.

US v Evans

Dr. Roger Evans of Wichita has agreed to pay $1.5 million for allegedly submitting false claims to Medicare.  He was not at the clinics when the tests were done and did not directly supervise the tests.  The tests done were ECP for help with cardiac function.

Hospitals v Humana

Humana has agreed to pay various health systems a total of $45 million for it's Tricare arm not paying what it was supposed to pay.

US v Echols
Texas District Court

The prosecution is stating that Dr. Ben Echols of Houston signed off on hundreds of patients for home health who did not need to be in the program.  They state that the physician cost the government $5.2 millions in claims.  He did not see 2/3 of the patients before recommending home health.

California v Kaiser

Kaiser has settled the rebuke from the state for not paying for physician, occupational or speech therapy for it's members.  Those that were either denied and sent an appeal to the state or paid for the therapy on their own will be reimbursed.  They have to January 31, 2013 to apply for the refund.

Forte v Dental Board of Florida

In this case to alleged fraud against the dentist an ALJ ruled that when the fraud occurred the dentist was not on the premises and had no direct knowledge of the fraud.  The ALJ ruled that if he did not do the fraud and his employees did, the dentist was not to blame under the Florida statutes.  The Board reluctantly made the dentist pay a fine and allowed him to return to work.

US v Natale

Dr. John Natale of Chicago was convicted in federal court of making false statements.  He was a surgeon at Northwest Community Hospital specializing in fixing aortic abdominal aneurysms.  He is now at Swedish Covenant Hospital.  He was convicted of making false op reports making the surgery more complicated than it actually was.  

US v Group Health Corp.
WD Washington

An Ophthalmologist, Dr. Zemplenyl, accused the medical group of false claims, ordering her to do surgeries that were not needed and retaliation.  She lost summary judgment on all counts.  She never investigated and her belief was not enough.  She also had no constructive discharge or adverse employment actions placed on her that were not indicated.  

Massachusetts v Delacruz

Fallon Delacruz worked at the Eye and Ear Infirmary in Quincy and was arrested along with her brother for identity theft.  She stole identifications of patients and used them to get electricity for their apartment.  They opened fake accounts to get their electricity for free. 

US v McCarty

 Rhett McCarty, or Lake Ozark, Missouri, a psychologist, has been indicted for doing psychotherapy in patient homes seven days a week and for long hours per day.  This included all holidays.  The patients said they only saw the physician once a week.

US v Nisar

Dr. Abid Nisar of Town and Country, Missouri, an oncologist, was sentenced to probation for two years and fined $25,000 plus a repayment for $1 million.  He is also barred from participation in federal health care programs for seven years. All this is for misbranding prescription drugs and submitting false claims.       Top


Doe v VA
To Be Filed

John Doe became another victim of the combination of the VA nursing and alarm fatigue.  The nurse ignored the alarm and the patient died.  This one happened at the VA in Manhattan campus of Harbor Healthcare.  The fed inspectors happened to be at the hospital when the incident occurred investigating an earlier death for the same reason but on a different unit. 

Kunkel v Universal Health Services of Rancho Springs
Ca Ct App

Kunkel sued the ED group for malpractice but did not follow the California law requiring an expert to be another ED physician.  The expert testimony was therefore disallowed and the case dismissed on summary judgment.     

Maverick County Hosp v Martin
Texas App Ct

Martin sued Dr. Fuller for med mal and then changed to Maverick Hospital when it was found that Dr. Fuller was an employee of the hospital.  During Deposition Dr. Fuller told of adding an addendum to the op report at the request of the hospital where the surgery actually occurred, Fort Duncan Medical Center.  Martin then attempted to add Fort Duncan and Dr. Fuller to the defendants but the court said no since while working at Fort Duncan, Dr. Fuller was still an employee of Maverick and the fraudulent op report was part of the same subject matter (malpractice).


Massachusetts v South Shore Hospital

The hospital agreed to pay $750,000 for a data breech of about 800,000 people.  The hospital contracted with Archive Data Solutions of Pennsylvania to erase and resell 473 data tapes.  None of the data was encrypted.  The tapes were shipped to Texas in three boxes but only one arrived.  Not bright.

People v Boston Children's Hospital
To Be Filed

This hospital is as dumb as the one above.  A laptop with unencrypted information of 2500 patients was stolen from an employee attending a conference in Buenos Aires.     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.