May 15, 2002 

Fraud and Abuse

Peer Review

Medical Marijuana






Child Removed from Parents


Fraud and Abuse

US v Univ. Med. Ctr. of S. Nevada

The University of Nevada at Las Vegas has agreed to a settlement of $1.16 million for pneumonia upcoding, a violation of the False Claims Act.  Part of the settlement is an immediate payment of $725,000.

US v Marycrest Health Systems

Marycrest Health Systems of Denver has agreed to pay the government $3.7 million to settle allegations submitted false claims. The also had below market leases and other incentives for physicians that referred patients to the hospital.  This whistleblower case gives $1 million to the CEO of the hospital.  The defendants also need to pay the CEO $50,000 for wrongful termination and $750,000 for attorney fees.

Lowmbury v VanBuren
Ohio Supreme Ct.

When does the physician patient relationship begin?  This case stands for the proposition that the on-call physicians who never saw, consulted or treated the patient had a relationship with the patient by virtue of his supervision of the OB residents.  This bad baby case resulted from the discharge from the hospital of the pregnant patient after a contraction stress test by the OB resident.  The attending was never called.  The trial and court of appeal both stated there was no duty by the on call doctor who was never contacted to the patient.  The Supreme Court stated that supervision constitutes medical care.  The Court looked at Akron City Hospitals consent form that stated that the supervisory physicians is the patients attending physician.  He had a duty to take an active role in the supervision of the patients.  This should do wonders for teaching hospitals in Ohio.    

    Colorado v Stuckey, MD

Dr. Initha Valerie Stuckey pled guilty several months ago of fraudulent Medicaid billing amounting to about $25,000. She was upcoding and billing for services not performed.  She has been sentenced to 60 days jail and eight years probation.  She was also ordered to pay restitution.

US v Century Health Services
USCA Tenn.

Century Health, a home health agency has been assessed treble damages for Medicare fraud.  The total is $7.62 million.  The organization was erroneously given $2.54 million and placed it in their general fund.  They did not tell about the overpayment, but the whistleblower did. 

US v Rogan & Bainbridge
Ill. Fed. Ct.

The US has decided to sue Peter Rogan and his Bainbridge Management Company for $18 million for Medicare fraud.  This is the company that ran the Edgewater Hospital in Chicago who paid homeless people to come to the hospital for treatment.  Bainbridge is currently in trail for criminal fraud.  Edgewater has closed due to its debt from federal fines.        

US v Red Line HealthCare

 In another settlement, the Red Line HealthCare of Minnesota must pay $6.1 million for false claims over a ten year period.  They dispensed feeding tubes without authorization and overstated the costs of the Medicare supplies.  The whistleblower accountant will get $900,000 of the award.  

US v Duke University
US Dist Ct.

Duke had been sued by a whistleblower for fraud in billing for experimental heart procedures and devices.  The whistleblower was a medical devices salesman.  Duke is only one of 100 hospitals named in the suit.  The government has now joined the whistleblower which is bad news for Duke. The suit was originally filed in 1994. The government has already settled with many hospitals over this issue and received over $30 million.  So far, the whistleblower and his attorney have collected over $5 million.        Top

Peer Review

Ahmed v Univ. Hosp. Health Care sys.
Ohio Ct. App.

Ahmad, a OB/GYN, lost his privileges against the bylaws and for anti-competitive reasons was awarded damages of $200,000 which was upheld on appeal.  The court states that the concept of HCQIA immunity is rebuttable by a preponderance of the evidence.  The Board without explicit authorization in the bylaws initiated an investigation and peer review against Ahmad.  The court also ruled that the physician did get due process and was not reinstated on the medical staff.     

Katz v Hospital Authority
GA Ct. App.

Katz, an ED physician had his priviileges revoked by the hospital and then based on the revocation terminated his contract with the hospital to provide ED coverage.  After notice of the action, Katz requested a hearing and then requested all the documentation from the hospital regarding the causes of action.  Katz then cancelled his request for a hearing.  Katz then received a letter from the COS that there had been a mistake and the MEC had only recommended the revocation of his privileges not that they had done so.  Katz then sued the hospital for failure to follow their bylaws.  The hospital received summary judgment and Katz appealed.  The court of appeal reversed the trial court and stated that Katz had a cause of action since Katz had lost his ED contract via the mistake of the MEC.

Univ. Health Services v Long
Georgia Supreme Court 

Long, an OB/GYN on staff for 25 years, had his privileges removed.  He filed for and received an injunction against the hospital with the hospitals blessing until the review process had been concluded.  After the conclusion the hospital petitioned the court to dissolve the injunction since they now wished to revoke the privileges.  Long fought the lifting of the injunction and won.  the case ws appealed and the Supreme Court reversed stating the court should defer to the hospital's judgment.       

Kent Community Hosp. v Attorney General
Mich. Ct. App.

 A long term patient fell, hit her head and died soon after.  The AG investigated by interviewing hospital employees and obtaining seven thousand documents from Kent.  Then the AG issued a investigational search warrant and seized thousands more documents.  Kent claimed that many were privileged peer review records and kept them sealed.  The AG petitioned the court to unseal the documents.  The court of appeal stated that the documents are sealed no matter if gotten by subpoena or search warrant.  This is directly opposite the California ruling in Del Cielo.         Top

Medical Marijuana

US v Oakland Cannabis 
DC N. California

The District Court judge refused to lift an injunction against the Club selling marijuana for medical purposes.  This is a result of the US Supreme Court recent decision stating there are no medical benefits from marijuana.  The decision will again be appealed to the 9th Circuit which may state that it is okay to distribute to help the sick.        Top


Patients v Madera Community Hospital 
Superior Ct.

In the farming community of Madera, California the Madera Community Hospital cancelled their MediCal contract due to the low payment by the state.  Three "patients" have filed suit against the hospital for canceling the contract.  They want the county to have a place for MediCal patients to go and they don't care who pays.  The hospital is a non profit hospital who did receive funds (Hill-Burton) to help in the construction of the hospital years ago.  The law does require those hospitals which received these funds to make arrangements to care for MediCal patients, but not forever.  The "patients" also state the hospital is breaking laws by referring elective surgery to surrounding hospitals with contracts.  The hospital does care for all MediCal emergency patients and is reimbursed on a per case basis.        Top


Gouveia v Phillips
Fla Dist. Ct.

A drunk, strung out artist had his hand he used for his art amputated.  He states this was without informed consent.  He does not remember giving consent and even if he did it would not have been good since he was competent to give consent due to his condition.  He did not in his deposition state that he was going to present an expert on this matter and therefore the expert's testimony was barred.  The court also found that testimony by an expert was not needed regarding consent since it was a matter the normal jury could understand.  The case was set for trial.

Dykema v Carolina Emergency Physicians
S. Carolina Supreme Ct.

Dykema had respiratory problems and was misdiagnosed on three occasions prior to dying of pulmonary emboli.  A trial was held against the emergency physicians, Greenville Hospital and Companion Healthcare , the primary care provider for wrongful death.  A jury awarded $2 million to the family and stated that it was all from Greenville Hospital.  They also awarded punitive damages of $500,000 against Companion.  The trial court denied the reduction of damages stating the statutory caps did not apply since the case was filed prior to the caps being passed. The court also reversed the punitive damages since there had been no underlying damages against Companion. The Supreme Court ruled against the trial court since Companion had missed the date for contesting the punitive damages and agreed with the trial court on not reducing the damages from Greenville.

Palladino v Piedmont Hospital
Ca. Ct. App.

The plaintiff sued the hospital for negligent hiring and negligent supervision of nurse Peterson.  The nurse was alleged to have sexually assaulted a patient.  The trial court stated that the hospital could not be held liable for the nurse's actions that are not in their duty.  The appeals court overruled the trial court stating that respondeant superior (let the master answer) would hold since the actions alleged were not enough afield from the duties to be precluded from claims.  The nurse was required as part of his job to touch the genitals.  The case was okay for trial.

James v Poppa
Mo. Ct. App.

Does Worker Compensation preclude a law suit against a physician for medical malpractice?  Not in Missouri.  The claim was that a physician's malpractice aggravated a patient's condition that occurred on a job related injury.  The trial court allowed summary judgment for the defendant but the appeals court overruled.  This is because the physician is a third party which can be sued as a tortfeaser.       

Russell v Pediatric Neurosurgery
Colo. Supreme Court

The Colorado Supreme court has allowed a professional corporation to be sued for medical negligence.  The argument against this is that since Corporations can not practice medicine they are immune from suit.  In other states the professional corporations may be sued but all are automatically covered by insurance when the shareholders purchase the insurance.  This is a reasonable result since all shareholders are jointly and severably liable for the result.       

People v Mays

 Tina Mays, a nurse anesthetist, was indicted by a grand jury for manslaughter.  She did the anesthesia on a retinal patient who died.  She stated that during the surgery the blood oxygen level was at 100% but forgot to mention that the patient had no mechanical monitor.  She also did not help with the resuscitation as she "appeared in a trance".

Lee v Wesley Med Center
Kansas Superior Ct.

Lee died after waiting 1 1/2 hour in the ED with chest pains.  He was a smoker and the jury found that Lee was more responsible for his condition than the hospital.  Lee waited several hours with chest pain prior going to the ED.  He also never had regular physical exams. All 12 jurors agreed that one can not just sue a hospital if something goes wrong and you are the main contributor to the problem. 


The multiple suits against Sulzer for the problems with thee total joints has been settled.  Sulzer has agreed and the court has approved a settlement where $1 billion will be placed in a fund to pay all the people involved.  If this had not been approved there would have been no payments since the company would have declared bankruptcy.   Top


Correa-Ortiz v Mercado-Sile
District PR

The plaintiff filed a claim against a private physician for EMTALA.  This waste of time was because EMTALA does not allow a private cause of negligence action against a physician.  Since this case was screened adequately, there was no EMTALA violation.  Case dismissed.         Top


In re Humana
11th Circ

The 11th Circuit has basically given the physicians all they wanted for the technical part of the case.  Those physicians who have arbitrations in their contracts with the HMO can not sue the HMO but can sue a different HMO for conspiracy.  So all physicians can sue all HMOs.  All arbitrations agreements that do not allow punitive damages are unenforceable since they will not allow the treble RICO damages.      

Med. Soc. of New Jersey v HMOs
NJ State Ct.

 The New Jersey Medical Society has become the latest one to sue managed care organizations for illegal denials or illegal delaying of payments.  The defendants include Aetna, Cigna and Oxford.  The insurers deny the allegations.  

Med Assoc. of Georgia v Blue Cross
Ga. State Ct.

A Georgia state court has ordered Blue Cross and Blue Shield of Georgia to disgorge its fee schedules and payment methodology.  The suit was filed in 1997 and only now has come to an end.  This is equivalent to the Texas ruling by the Attorney General, as reported under Legislative News.   Top


Harris v Univ. Hosp. of Cleveland
Ohio Ct. App.

Dr. Harris hired Dr. Craig and contracted for money and with a non-competition and non-solicitation clause.  These were for two years.  The two then agreed to be partners but never signed a contract.  Craig was paid at the new level.  Harris offered his practice to Univ. Hosp. that was refused but they did hire Craig.  Harris documented the amount of patients lost when he sued for Craig being in an office within the proscribed radius. Harris won money damages in trial court.  The court of appeal stated the covenant was okay for two years so the University System was allowed some money off the judgment.        

Medical Students v Hospitals
Class Action filed in Washington DC

The medical students are suing the medical organizations and hospitals for the matching program. The suit states that the matching program allows no discussion between the employer hospital and the medical student who will work about 100 hours a week for $40,000 per year.  Some say that the matching program fosters competition for the best jobs while others state there is no way to get competing offers.  If successful the residents salary could increase substantially since they work longer than nurses or physician assistants who get paid more than they do.  The other problem for the hospitals is that the salaries are uniform.  This is potential collusion and against the anti trust laws.  This should be an interesting but a long and convoluted  case.  This story is related to a story in Legislation where Yale New Haven has been threatened with loss of their surgical residency.       Top

Child Removed from Parents

A nine year old Arizona boy has been made a ward of the state after his parents refused any medical treatment for his brain tumor.  The parents had refused citing their religious beliefs.  Under the state's jurisdiction the boy had an MRI and will continue to be under the state due to the imminent danger to the patient.        Top


Chester County, PA v Blue Cross
Fed Ct.

Chester County has accused Blue Cross to be so dominating in the field that it is anticompetitive.  The suit states that Blue Cross uses its anticompetitive position to bully the hospital to accept payment that is insufficient to cove the costs.  The suit asks for $60 million in damages and to break up Blue Cross. (Does this sound like Microsoft?)          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.