October 1, 2012 Recent Legal News





Peer Review and Employment


Pelter v 1-800 GET-THIN

The sister of a patient who died after a lap band procedure has filed suit against the physicians who did the procedure and the advertising agency.  She also sued the clinic where the procedure was performed.  She will have to get in line as there are many suits against the clinic and the advertising as well as the physicians.  This case was against the anesthesiologist for not informing the surgeon of the patient deteriorating post operatively.  The patient was eventually transferred to a hospital.  Two other people who worked in the clinic also sued the anesthesiologist for not turning on the oxygen tank prior to the patient's surgery.  The other suit also contends that the surgery center owner switched the oxygen tanks after the patient died with another center he owns.

Watson v Gilster-Sara Lee
Colo Fed Ct.

A Jury awarded Watson $7.2 million for failure to warn that the ingredient in microwave popcorn may be dangerous to your health.  Watson ate the stuff daily for years and developed a non reversible lung disease.  This is the first consumer case regarding this but there will soon be others.  Workers in the plants that make the stuff have been suing and winning for years.

Prabhakar v Fritzgerald
Texas Ct. App

The court upheld the Texas law on $250,000 caps and that physicians may pay the award in periodic payments as well as in a lump sum.  Dr. Prabhakar was found guilty by a jury after all others settled.  The award was $5 million for economic and another $5 million for non economic damages.  The appeals court said the trial court was right in decreasing the non economic damages to $250,000 under the Texas law.  It also said that since the physician had only $200,000 in insurance and showed that he had assets to cover the rest that the law allowed periodic payments.

Medina v Montifiore Hospital

The hospital will pay between $7-$10 million to the family of the patient who died while she was in the OR donating a kidney to her brother.  The team cut the aorta and she bled to death.  This case never got filed and was settled very quickly.

Carter v SSC Odin Operating Co.
Illinois Supreme Court

The Illinois Supremes stated in a claim against a nursing home that the arbitration agreement must be used for medical malpractice but not for wrongful death claims.

Fellows v Moynihan
Washington Supreme Court

The state high court ruled that original credentialing information and any other documents not produced by the Quality Department or Peer Review Committee are fair game for med mal plaintiffs.  This includes the reason for restricting or terminating a staff member's privileges.         Top 


Prime Healthcare v Kaiser
CA Fed Ct

The federal judge dismissed the suit by Prime against Kaiser and the SEIU for antitrust. He said that Prime did not plead sufficient facts for a conspiracy.  Prime states it will refile.

EEOC v Delano Med Ctr

The hospital must pay $975,000 to the Filipinos who sued the hospital for discrimination.  The hospital had an English only law which required English or the patient's native language to be spoken in the hospital.  That is still the policy.  The problem was the hospital singled out the Filipino community with the rule and left the Hispanics alone.  The rule now include all.

Liles v TH Medical Center
ED Texas

Liles sued the hospital under EMTALA for attempting to transfer him out of the hospital while his condition was unstable.  He had been admitted for ARDS, pneumonia and significant lung damage.  He had no insurance.  The hospital attempted to transfer him to a nursing home and he refused.  The court stated that the hospital admission does not mean he was stabilized under the law.  It means that there would be no material deterioration is likely to result due to the transfer.  The court allowed the suit to continue.        Top


OCR v Massachusetts Ear and Eye Infirmary

The hospital was fined $1.5 million for a theft of a laptop computer in 2010 which contained just 3000 patient records.  They failed to secure the data as well as failed to do a through analysis of the risk to the confidentiality and not adopting policies to restrict access to ePHI to authorized users of portable devices.  I can't wait to see what the fine will be for some of the large offenders.

Sebelius v Uplift Medical
D Maryland

HHS assessed a $4 million fine on the company for withholding medical records from patients and failure to cooperate with an investigation.  The court affirmed the fine.  Uplift tried to get out of the fine by unincorporating but the court found that the corporation and it's two owners were liable for the fine.        Top


US v Soliman

Dr. Mikhayl Soliman of Plymouth, Michigan, was arrested and charged with healthcare fraud and distribution of prescription drugs.  He has been charged with billing for services not rendered and distributing drugs outside his practice for no necessary reason.  

US v Garrison

Mr. Garrison of Los Angeles is a PA who stole the identities of physicians and then wrote prescriptions for DME.  He was found guilty of healthcare fraud and sentenced to 72 months in prison plus 3 years of supervised release and restitution of almost $25,000.

US v Tiwari

Dr. Kamal Tiwari of Bloomington, Indiana, was an anesthesiologist was was found guilty of health care fraud and illegal drug distribution.  He was sentenced to 42 months in jail and repay restitution of $1,299,866.54.  He did pain management and saw patients and did procedures at the same address.  He pled guilty earlier this year to doing unnecessary procedures.


HCA has agreed to pay $16.5 million to settle a suit by the feds that it gave money to a physician group in Tennessee to get more referrals.  It did this by pay higher than retail rent for offices in the buildings the physicians owned.  This is another whistleblower lawsuit and the snitch will get 18.5% of the payments or 1.2 million.

US v Georgia Cancer Specialists

The medical group agreed to pay $4.1 million to settle claims that it billed for EM claims not allowed.  They billed EM services on the same day they did procedures on a patient.  That is apparently not allowed unless they use -25 in their coding.  The medical group used -25 alot and this is one of the emphasis this year by the feds.

US v Benoit

Jo Benoit of King of Prussia, Pennsylvania, was caught doing psychiatry over the phone when she was not a physician.  She also wrote prescriptions for patients using faked credentials.  She had been convicted of 76 counts of healthcare fraud earlier in the year.  she has now been sentenced to 72 months in prison.  She also must pay restitution to the patients in the amount of $422,583.62 plus a special assessment of $7,600.

US v Rios

Dr. Juan Rios of Southern Illinois pled guilty of healthcare fraud after he left the US for 13 years to avoid prosecution.  He was in Peru when he was extradited for prosecution.  He forfeited a $350,000 cash bond when he fled.

US v Dawkins

William Dawkins, a Dentist , in also Southern Illinois pled guilty of fraud and selling illegal narcotic drugs.

US v Dailey

Podiatrist John Dailey of West St. Louis county, Missouri, pled guilty of lying on three patient to Medicare by saying he did services he never did.

US v Patel

Dr. Dinesh Patel of Newark, New Jersey pled guilty of fraud and agreed to pay back $7600 he got for referring patients to Orange MRI.  There are 12 other physicians and a NP also charged.  He now faces five years in jail and a $250,000 fine.

US v Elhorr

Dr. Hicham Elhorr of Detroit has been accused of healthcare fraud.  He is reported to be the mastermind behind a $40 million scheme to defraud the government.  This is for home health visits never done or done for unnecessary reasons.  Dr. Elhorr owned the business.

US v Reynolds

John Reynolds, the former CEO of the Hospital for Special Surgery in New York City has been indicted on kickback charges.  He allegedly got kickbacks from hospital vendors and even a British health care organization.  He had filled out forms that he had no conflicts and did no outside consulting.  The indictment says he set up a consulting firm to receive the kickbacks.

US v Babaria

Dr. Ashokkumar Babaria of Orange, New Jersey, pled guilty to being the mastermind behind the kickback scheme to pay physicians for referring patients to his MRI unit.  As the medical director for the unit he negotiated, approved and paid the kickbacks to the physicians.  He is the 6th person to plead guilty in this scheme.         Top

Peer Review and Employment

Munsif v Amer. Bd of Internal Medicine

Dr. Musif did not do a required psychological evaluation and had his license revoked.  He sued the above plus several New Jersey licensing entities for discrimination.  He lost of course but I do not understand how an attorney would take the case of a known paranoid and who had filed a previous law suit on the same grounds that was dismissed.  The only reason would be the attorney was paid by the hour.

Assaf v Trinity Med Ctr.
7th Circuit

Dr. Assaf sued the medical center for which he was director of the epilepsy center and wanted money for loss of income for professional fees after he was terminated as the director.  He lost in the trial court but won in the 7th Circuit.  The case was remanded for trial on the amount of the damages.  The hospital should just settle.

Cardiovascular and Thoracic Surgeons v St. Elizabeth Hosp
SD Ohio

In an interesting case, the medical group was contracted to be available for the staff of a hospital that wanted to set up a Cardiac program.  The hospital applied for CON which was opposed by a competing hospital.  The two hospitals merged and the new entity refused to honor the contract under Stark since they had done nothing.  The court said they did what was asked.  They were willing to be on the staff of the hospital if the hospital got the CON approved.  The medical center eventually gave the group a termination letter but the group is entitled to all monies up to the time of the termination.

Mazzoccoli v Merit Mountainside Hosp.

The physician had been terminated for back dating medical entries and sexual assault on a nurse aide.  He sued for discrimination and lost because he (his attorney) failed to claim any fact that would prove discrimination or antitrust.  Another waste of money and time.

Wright v Kaiser

In another wrongful termination case the psychologist sued for retaliation for whistle blowing.  Here the attorney pled the facts and the case survived summary judgment.  The court went so far as to state that Kaiser was sandbagging and this would not be allowed so the issue went against them.  Kaiser really lost  all the important points in this case.          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.