October 1, 2010 Recent Legal News



Nursing Home


Peer Review




US v Dweck

Dr. Fred Dweck of Hollywood, Florida, pled guilty to Medicare fraud.  He referred patients unnecessarily to agencies for diabetes.  He had generated $37 million in fraudulent claims and $22 million in payments.  The physician worked for a clinic and the owner also pled guilty.  He got kickbacks from the agencies.  Five nurses also pled guilty for falsifying medical records.    

US v Rasco

 Three people pled guilty of Medicare fraud in Georgia.  They plied people with gifts and freebies to use their Medicare numbers.  The three were Alfred Rasco, Niurka Rasco and Iris Oswald. They then used the numbers to falsify claims to Medicare.  

US v Masood

Dr. Yousuf Masood and his wife of Elizabeth, New Jersey have been charged in the use of fake physicians.  The indictment alleges the hiring of unlicensed individuals to treat patients in the Masood office.  The fake physicians, who were paid $17 an hour, face 10 years in prison as does the Masoods.  

US v El Centro Hospital

The hospital agreed to pay $2.2 million for allegedly inflating patient charges.  The charges should have been emergency room charges only.        Top


Abcarian v McDonald
7th Circ

Disclaimer:  I know Dr. Abcarian and respect both he and his ethics.

Dr. Abcarian was Chief of Surgery at the University of Illinois.  He is an outspoken individual and when he sees wrongs he points them out, sometimes more loudly than necessary.  He had many run ins with the University.  The University and Abcarian were sued for med mal in a case.  The University never notified Abcarian of the case and settled it for just under $1 million.  This made him reported to the Medical Board and the NPDB for the med mal.  He had no chance to defend himself in the case.  Not only that the University did not report anyone else to the Board and the same day as the settlement instructed the med mal plaintiff's attorney to individually sue Abcarian and not serve him.  The plaintiff attorney was then to tell the judge the case had settled and request a dismissal of the suit.  This meant Abcarian could not argue the merits of the claim against him.  He understandably was slightly upset with the University of Illinois and possibly rightly believed that they settled only to screw Abcarian.  Abcarian sued the University and to no one's surprise lost.  He appealed to the 7th Circuit and lost again.  The court stated truthfully that the University had to report Abcarian to the Medical Board.  They did not weigh in on the settlement without knowledge of the physician issue.           Top

Nursing Home

Ellison v Houser

Harvard trained attorney George Houser was found guilty in a nursing home death.  He was the owner of the nursing home in Rome, Georgia.  He was ordered to pay $43.5 million for the malpractice but will not since he went bankrupt several weeks earlier.  He and his wife are also being sued by the US for Medicare fraud.  He used the money for a multi million dollar home for his ex wife instead of for medical care.  The plaintiff was malnourished and fell breaking his hip.  The family was never notified and the patient was not treated.  

Patients v Skilled Healthcare

A class action suit against Skilled Healthcare resulted in the largest jury verdict of $670 million.  They appealed and the parties settled for $50 million.  The settlement will go to 32,000 plaintiffs and of course attorney fees.      Top


California v PacifiCare

California could fine PacifiCare $9.9 Billion for systematically not paying claims and ignoring complaints.  The insurer has contested the fine and the two parties are winding up a 10 month court battle. This may end up in the California Supreme Court.  

California Medical Assn. v Blue 

 The California Medical Association has filed a class action law suit against Blue Shield.  The reason is the way the insurer rates physicians.  The insurer states it is based on quality but the physicians state it is inaccurate, too difficult to amend and is truly based on economics.  

Magorien v Blue Cross

The plaintiff has filed a civil suit against the insurance company for allowing his private information to be compromised.  As one might expect, the attorney wants class action status.         Top 

Peer Review

Calor v Ashland Hosp.
Kentucky Supreme Court

Dr. Calor provided services to the hospital as a locum via a anesthesia staffing agency.  The hospital released her and withheld her wages for allegedly falsifying her time sheet.  This was reported to the staffing agency.  She sued for interference with contract and defamation.  The jury found for her on all counts.  The court of appeal overturned the trial court stating that the hospital was entitled to a qualified immunity.  The Supreme Court agreed that the hospital was entitled to the immunity but it was a matter of the jury to decide whether or not the hospital waived that immunity by not investigating the report to the staffing agency prior to making the report.

Mendez-Arriola v White Wilson Med Ctr
ND Fla

The physician radiologist who was a partner in the Clinic sued the hospital after she states her work lessened in quality due to the hospital's working conditions.  She was summarily suspended for 90 days and when she complained that she was given no hearing and conditioning her return to work on a psychological exam she was fired.  She obviously sued in federal court for discrimination and pendant state claims.  The court ruled against the hospital on the necessity of the exam which was not necessary.  However, under Florida law there is no law against the exam the claim was dismissed.  The Court also ruled that any ADA claims can not be prospectively waived.  It also dismissed the radiologist's claim for termination as an employee since she was a shareholder and not an employee.  The Court did rule that the claim for lack of due process could proceed.    

Leal v US
11th Circ.

Dr. Leal was summarily suspended from a hospital who reported him to the NPDB.  He sued to have his name removed from the bank.  To no one's surprise, he lost. He contended that the report was inaccurate but the NPDB does not delve into that.  They only care that the hospital's adverse action and explanation was reasonable.  He was summarily suspended for disruptive conduct.  The court said that this could be a quality item and therefore ripe for reporting.  The court also stated that imminent danger to patients was not required for reporting, only that it lasted 30 days.            Top


Todd v College Station Med Ctr
Texas App Ct

Todd was in the hospital for a surgical procedure.  Post operatively she needed to go to the bathroom and when no one answered her calls for help, she attempted to go on her own.  She fell and injured herself.  She sued the hospital for negligence and had a nurse as an expert witness.  The case was dismissed eventually since a nurse may not testify on causation, only a physician may do so under Texas law.

Williams v Nihum
SD Texas

College Station is back to back.  One win and one loss.  Williams sued Dr. Nihum and the hospital for MRSE infection after back surgery.  This was not diagnosed for several weeks after her release from the hospital.  She has permanent disabilities.  She added the hospital after she found out that the hospital had a higher than the national average of the MRSE and failed to tell her and failed to do anything to reduce or prevent the high infection rate.  The hospital stated that since it had no duty to obtain an informed consent (the physician does) they have no duty to tell the patient about the incidence of the infection.  The court said the hospital may have a duty to inform the patient of the risk of any surgery in that hospital.  Sounds like College Park would not be my hospital of choice.    

Freed v Crofton Country Club
Maryland Ct. App.

The son of the plaintiffs entered the swimming pool at the country club without a life jacket and drowned.  This part of the case had to do with whether or not personal injury cases non economic damages could be capped.  The answer was yes.  

  Marks v St. Luke's Hosp.
Texas Supreme Court

Marks, a patient at the Houston hospital, fell out of bed causing damages.  He states that he fell due to a faulty foot board post back surgery.  His attorney wanted unlimited non economic damages.  The high court said that this was not premise liability but malpractice and that as such non economic damages were capped.  This was a rehearing of the same case decided in favor of Marks one year earlier.  With the decision now that it is under the auspices of med mal the case had to be dismissed since there was no expert witness.            Top


Board of Registration (Mass) v Doe
Massachusetts Supreme Court

Dr. Doe, a board certified psychiatrist specializing in pain management, was under investigation by the Board.  The Board subpoenaed his records and he refused stating the psychiatrist patient privilege.  The lower court stated that Dr. Doe was not a psychotherapist.  The Supreme Court disagreed.  They stated that to be psychotherapist one needed to (1) licensed to practice medicine and (2) must devote a substantial time to the practice of psychiatry.  The Board during oral argument finally agreed that pain management is a sub specialty of psychiatry as well as neurology and internal medicine.  The Board then argued that the privilege must give way to the Board's need to protect the public.  The court ruled that the legislature made the rules and the court can not overturn them.  The court ordered the trial court to quash the subpoena.   

US v Pepala

Paul Pepala of Pittsburgh, Pennsylvania was indicted by a federal grand jury of HIPAA violations.  The defendant was employed by UPMC, Shadyside Hospital and accused of disclosing to others personal information of patients.  He could be up for an 80 year sentence.        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.