May 1, 2005 Recent Legal News

Fraud and Abuse


Peer Review





Fraud and Abuse

US v LaRossa

Dr. LaRossa of Boston over billed Medicare by charging for consultations instead of regular patient charges.  He did this from 1998-2003.  The overcharges were about $400,000.  He has repaid Medicare and will continued to be monitored by the program.   

US v Kaiser

Kaiser Foundation Hospital, Kaiser Foundation Health Plan and Permanente of Hawaii were ordered to pay restitution to the government of $1.9 million for allowing an unsupervised unlicensed person to practice dermatology.  This was a whistleblower case.  

US v Rosin, MD

 Dr. Michael Rosin of Sarasota Florida allegedly bilked the system for $3.2 million by doing unnecessary skin cancer surgery.  Some of the slide not only did not show cancer but were not even human.      

US v Herpin
Guilty Plea

Dr. Callie Herpin of Houston pled guilty of bilking the system for over $30 million by falsifying medical necessity slips for wheel chairs and other DME.  She also was involved in distributing over 1.7 million hydrocodone tabs and 2500 gallons of codeine cough syrup.         

US v Porcada, Mitchell

Drs. Jorge Porcada and Clark Mitchell of Miami were convicted of conspiracy of Medicare fraud.  The physicians gave HIV infusions to patients that did not need them and forged the patient's medical records. 

US v Sriram

In 2001 I wrote about Dr. Sriram being investigated for fraud and doing unnecessary medical procedures at the now defunct Edgewater Hospital in Chicago.  This month after Dr. Sriram pled guilty of one count of mail fraud, one count of healthcare fraud and admitted he billed for procedures he never performed.  The prosecution stated these came to $15 million.  The judge stated it was only $1258 and sentenced Dr. Sriram to five years of probation.  Dr. Sriram has been unable to practice since 2000 and has spent over $1 million in his defense.  The judge criticized the US prosecutor for his failure to turn over in a timely manner all evidence to the defense.  It will be interesting to see if Dr. Sriram gets his license back and if he is dropped from the Medicare roles since he did admit to fraud. The judge ruled that even though Dr. Sriram pled guilty to fraud, he was not guilty of fraud but was just a typical dumb physician.    Top


Tennessee v Tennessee Justice Ctr.
6th Circ.

The Court of Appeals ruled that the district judge had over stepped his authority by wanting to get into the nitty gritty of the state's cutting of TennCare and vacated his order stopping the cuts. The judge then stated that he will not go on his own but will require the attorneys to resubmit requests for an injunction and will take those under submission after arguments.  

The judge doesn't learn.  He has again stopped TennCare from removing the 322,000 people from the roles since it would violate their constitutional due process rights. I guess he never heard of the US Supreme Court decision that states hearing after the action are legal.  The judge wanted the state to jump through eight hoops to gain his approval.  The state had already gotten permission from the feds for their processes.  

The Governor has proposed an agreement to add back about 100,000 of the 350,000 that were going to be removed from TennCare in return for the program to limit prescription drugs, inpatient days and some other medical services.        Top

Peer Review

Beth Israel v Upton
Physician Dismissed

Dr. Upton, a hand surgeon at Beth Israel in Boston was doing a long case and there was a previously scheduled break in the surgery.  While on the break Dr. Upton left the patient and the hospital and went to Children's hospital to do a case.  The case at Beth Israel had multiple breaks scheduled of up to one hour  in order to restore the blood circulation to prevent surgical damage.  The case at Children's was also scheduled to correspond to the break at Beth Israel.  That case was being done so the family could leave for vacation.  Dr. Upton did not tell anyone at Beth Israel that he was leaving nor did he arrange for another surgeon to take his place while he was gone.  Neither patient was harmed.  Dr. Upton voluntarily gave up his medical license until the state had finished its investigation.  The hospital had reported the incident to the State. The hospital also indefinitely suspended Dr. Upton.  Does any of this sound familiar?  Another Boston surgeon left the patient to make a bank deposit, a different but still equally reprehensible action. Sounds like Boston has some physicians who believe they are Gods.  They are not.    

Sardes v S. Broward Hosp
Fla. Cir. Ct.

 The court found that amendment 7 was not only legal but retroactive.  This obviously happened prior to the legislature passing the newest restrictions on amendment 7 and 8 (See Recent Legislation).  It will be reversed.  

Brown v Graham
Fl. Circ. Ct.

In a medical mal action the plaintiff requested the peer review records at the hospital under Amendment 7.  The court said no since it required legislative implementation.  The court also said that no retroactivity could be attached to Amendment 7.  See above.

Kaiser v Sacramento County Ct.
Ca. Ct. App.

A physician was terminated from Kaiser and had her privileges revoked.  She requested a hearing that was supposed to begin within 60 days under California law.  It did not and the physician then initiated suit in court against Kaiser.  The above court said the physician needed to participate in the peer review process and if she believed the hearing officer was biased she could raise that issue in the hearing but could not use it as an excuse not to participate.        

Lo v Provena 
Ill. app. Ct.

 Lo was summarily suspended and lost at peer review and at trial court.  He appealed stating that the hospital had breached its contract via the bylaws.  The Court stated that the medical staff is a voluntary association and not separate from its members.  Since the hospital had approved the bylaws it had become a party to the original contract between the medical staff and its members.  The court also ruled against the physician in his attempt to sue the CEO for summarily suspending him stating that it was done in the furtherance of quality and therefore was not willful and wanton. The physician also requested a lifting of the restrictions on his privileges but this was moot as they had already been non renewed when he re-applied for the medical staff.    

Dodson v DeLeo
Pa Super. Ct.

 The plaintiff sued the defendant for malpractice and requested peer review records regarding the physician's pat practice.  The court said no since the records were generated for and used by the peer review committee.  Just because some of the information was available from other sources does not make the peer review records available.     Top


Lake Norman Hosp. v North Carolina
NC Ct. App.

Lake Norman Hospital sued after the State Department of Health allowed the opening of Presbyterian Hospital without permission.  The Court ruled that the state was wrong but the hospital does not have to close.  It is interesting that while the Court of Appeals was thinking about the decision the hospital went on fast track and opened.  So the hospital is open an working without state approval.        Top


McClinton v Virginia Mason

McClinton died after an intravenous injection of an antiseptic skin cleaner instead of a dye.  The hospital  notified the state of the sentinel event.  The state investigated and states the report had numerous inaccuracies.  The report states a fire occurred in a surgical suite burning a patient to death.  That has never occurred according to the hospital.

California v Tehin, JD

 Attorney Nikolai Tehin of San Francisco was convicted and sentenced to 14 years in prison for stealing more than $2 million in client funds some of which were med mal receipts.  

Duffy v Flagg
Conn. App. Ct.

The patient plaintiff got a new trial against the physician when the court denied the patient an opportunity to show lack of informed consent after a VBAC.  The physician had had a previous case of uterine rupture and failed t tell the patient about it after being asked about prior problems with the procedure.        Top


Community Hosp v More
NJ Supreme Ct.

A neurologist disputed the restrictive covenant in his contract that restricted him from practicing in a 30 mile radius of the hospital for two years.  New Jersey has a three part test for restrictive covenants.  They are fairness to the legitimate interest of the employer, no undue hardship on the employee and was not against public policy.  The physician wanted the Court to throw out the test and substitute a ban on all restrictive covenants.  The court refused to follow the doctor's advice.  They did say that since there was a shortage of neurological care in the area that the 30 mile radius was potentially injurious to the public but a 13 mile radius would be fair.

Paulding County Hosp. v Robinson
Ohio Ct. App.

The physician failed to live up to his part of the recruitment agreement and practice in the area for the full three years.  The physician was required to repay the loan to the hospital.  The physician wanted to leave because the hospital recruited two more physicians into the community reducing the original physician's living.  The court found the area was large and it was unreasonable to believe more physicians would not be recruited.  The physician lost.        Top


Physicians v Cigna

The judge has signed off on the settlements between the specialty non-physicians and Cigna for Cigna's illegal reductions of payments.  This follows Cigna's settlement with physicians last year.        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.