March 1, 2017 Recent Legal News



Peer Review and Employment




US v Gallas 

Attorney Alan B. Gallas of Kansas City, Missouri, was sentenced to one year and one day in federal prison for stealing over $1.2 million from St. Luke's Health System.  The attorney collected money from patients owed to the system.  Instead of putting the money into his trust fund he diverted it intp the firms operating account.  His partner in the firm, Mark J Schultz, just plead guilty and will be sentenced at a later date.  Gallas was also ordered to repay $1.2 million.

Connecticut v Weinstein

Bradley Weinstein, a chiropractor in Fairfield, was charged by the state with fraud for billing for $2000 in services never performed.

US v Solarin

Dr. Oluwatoyin Solarin, DDS,  of the Atlanta area has been sentenced to 18 months in federal prison for filing false claims to Medicaid.  She billed for procedures when she was out of town or for patients not eligible for Medicaid.  She has been ordered to sell real estate to pay the owed $1million.

US v Nahum

Dr. Kenneth Nahum and his wife Ann Walsh of Howell, New Jersey agreed to pay the feds $1.7 million for allegedly importing illegally chemotherapy drugs and billing as if they were the US versions.  

US v UnitedHealth

The feds have intervened in a whistleblower case that accuses the insurer overcharged for Medicare Advantage services.  Teh suit states the insurer inflated its plan members risk scores to boost payments, they treated patients for conditions they did not have, for more severe conditions than they had, conditions that had already been treated or diagnoses the didn't meet the requirements for risk adjustment.  The suit is also against most other Medicare Advantage plans as well.

US v Toussaint

Dr. Richard Toussaint of Dallas, the founder of physician owned Forest Park Medical Center has plead guilty of paying and receiving kickbacks.  In return for his guilty pleas he will be sentenced to no more than 10 years.          Top


Haines v UPMC

A fifth suit against the system has been filed in regard to a patient death due to mold infection.  He was not a transplant patient but did have leukemia.  He also was a gardener.  

Conforti v St. Joseph Healthcare

A female who is a transgender male is suing the Catholic hospital for refusing to perform a hysterectomy on her.  He had it at a different hospital and is now suing the Catholic one for discrimination.  The case is being handled by Lambda Legal. The hospital claims First Amendment right of religion as a defense and states that state law says that no hospital can be required to provide sterilization services.

Mullins v Suburban Hospital Healthcare System
D Md

The patient came to the ED for a hand injury.  The patient requested a transfer to a had specialty facility but the facility denied the transfer and the on-call physician did the required surgery.  The patient sued the surgeon, facility and the hand specialty facility for med mal and EMTALA.  Of course he lost in summary judgment the EMTALA claim against the ED but it was allowed against the had facility.  He also lost the med mal claim for not following protocol (legal malpractice?).  He was not allowed to amend his complaint.

Bain v Colbert City NW Alabama Health Care
Alabama Supreme Court

The state high court ruled for a hospital's summary judgment motion in a med mal suit by a patient's wife.  The 30 year old patient came to the hospital ED complaining of pressure at the base of the skull and fatigue.  He was triaged by nurses who did not note family history of paternal death of aneurysm at age 47.  The ED physician did get that history, examined the patient and ordered tests.  The patient was discharged after six hours and died from a ascending aortic aneurysm 20 days later.  The suit was against the hospital for the nurse and physician action.  The court said the nurses were off since the physician obtained the information.  The hospital is off for the physician as there was no proof that the hospital held out the physician to be a hospital employee.  This is the opposite of many jurisdictions where the hospital has to show they did say the physician was not an employee.  

Lindsey v Butterfield Health Care
Ill App Ct

A patient had a fall in a nursing home and sued.  The patient wanted all documents relating to the fall.  The nursing home refused saying they were privileged since they were eventually reviewed by the Quality Assurance Committee.  The court would have one of that since the reports were produced prior to any peer review committee meeting.   

Sensenich v Morcos

The first trial against Excela Health and Dr. Ehab Morcos has began with jury selection.  About 112 suits have been filed against the system, Dr. Morcos and Dr. Bou Samra for unnecessary heart procedures.  

Cooper V VA

A patient with terminal prostate cancer is suing the VA for the actions of a nurse practitioner at the Phoenix center.  The NP did not send the patient for a urological exam after finding an irregular prostate in 2011.    He found out 11 months later he had terminal cancer.  After he was told there would be a long wait to see a physician after his diagnosis he went to a private physician for treatment.       Top

Peer Review and Employment

Lopez v OptumRX
Arbitration Award

Dr. Jose Lopez of Tampa was awarded $1.5 million in his suit against the UnitedHealth subsidy for wrongly including him in the list of Medicare banned physicians.  The vendor put the wrong name on the list and then sent the list to pharmacies saying they would not be paid if they filled medicines form these physicians. Lopez found out about the mistake and notified Optum.  The not only id not correct the mistake but also sent letters to his patients saying he was banned from Medicare.  After Lopez hired a law firm Optum retracted the first letter to patients.  He sued for slander and won $500,000 in damages and $1 million in punis.   

Brasher v Thomas Jefferson University Hospital
3rd Circuit

A nurse in her 50s was terminated after multiple errors.  She claimed age discrimination since another nurse in her 20s who mad a serious medication error was not terminated.  The lower court and the 3rd agreed that the elderly nurse's prior disciplinary record made the two situations not similarly situated.  They granted the hospital's summary judgment motion.

Walker v Memorial Health System of East Texas
ED Texas

The MEC had recommended and the Board concurred for the surgeon to have mandatory concurring proctoring in five bowel surgery cases after issues arose in two cases.  After 30 days the surgeon had not complied with the proctoring and the hospital filed an adverse report to the NPDB saying it was due to substandard or inadequate skill level.  The court noted at this time that a hearing committee had recommended rejection of any adverse action.  The surgeon filed an dispute of the report and sued for preliminary injunction.  He won the suit.  

Morshed v St. Barnabas Hospital

A former resident sued for sexual harassment, hostile work environment and discrimination.  He wasted the documents, including emails between and among supervisors regarding his performance.  The hospital claimed peer review privilege.  The court blew that out of the water saying that there is no federal peer review privilege and these were not prepared for any peer review body in any case.  Produce the documents.     

Louisiana v Harris

Fredrick Harris, a VA employee, was suspended four years after the death of a VA patient.  He was indicted for negligent homicide in the death of a patient who died from a closed head injury.  He had been cleared in an internal investigation by the hospital.       Top


Brady Center to Prevent un Violence v Florida
11th Circuit

The 11th Circuit in an 8-3 vote ruled that the Florida law that says physicians may not ask patients regarding guns or entering the information into the medical record is void.  The district court had originally ruled the same way but they were overturned by a three judge panel.  The full court overruled the panel.

Texas v Duntch

In the first action of its kind that I know of, Dr. Christopher Dentch a neurosurgeon in Dallas was convicted of of first degree felony injury to a patient and sentenced to life in prison.  I will not say he doesn't deserve it when one reads the expose in D magazine from months ago.  He is portrayed as an egomaniac and druggie.  He has had multiple med mal cases and the hospitals his training program in Tennessee and medical board may all be complicit in the patient harms.  Nobody would go against settlement agreements and tell the next outfit that Dentch was a bad surgeon and had problems.  Shame on them all.

US v Summers

Dr. Alan Summers of Ambler, Pennsylvania, plead guilty of distributing controlled substances for cash.  The drugs were Suboxone for treating opiate addiction and Klonopin.  There were no exams.  He also employed other physicians in the scheme including Drs. Azad Kahn and Keyosrow Parsia.

Jemsek v North Carolina Medical Board

Dr. Joseph Jemsek sued the Board for violations of the Sherman Act due to their rulings in the treatment of Lyme disease with long term antibiotics and hyperbaric oxygen.  This treatment was initially covered by insurers but the board charged Jemsek with violating accepted treatment for this disease.  This suit was filed about 10 years after the physician was disciplined.  The court found that the 11th Amendment gave immunity to suits by private individuals in federal court and there was no evidence of an ongoing violation of the Sherman Act.        Top


US v Memorial Healthcare Systems

Memorial has agreed to pay the feds $5.5 million for violating HIPAA.  They had PHI on 115,000 people impermissibly accessed and disclosed to physician office staff.  The system did not follow their own policies and procedures which allowed this to occur for over one year.  Again, the hospitals think they do not have to do security.  

In re Premera Blue Cross Customer Data Security Breach
D Or

In a class action suit against the insurer for a 2015 computer hack exposing information on many individuals including financial information.  The court originally said the fraud claim did not meet the standard but allowed the plaintiffs to replead.  The court found the new pleadings did meet the standards.  The active concealment claims were tossed due to the enrollment of new members while not having security was not sufficient.  The court did allow the claim for fraud by omission by alleging Premera didn't disclose its failure to follow industry standards.  The court did not allow a breach of contract claim since there were no enforceable promises.  The court also ruled for the plaintiffs regarding ERISA preemption not applying.

Patients v West Virginia Healthcare
To Be Filed

A employee removed information from the Berkeley Medical Center and caused 135 people to be victims of identity theft to date and the information of almost 7500 people put at risk.  

Patients v Vanderbilt University
To Be Filed

Vanderbilt had two medical transporters look at EMRs of 3300 patients.  They have now put in place a way for the transporters to get the information needed without accessing the entire medical record.  Horse out of the barn thinking.         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.