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Two Orlando, Florida physicians were sentenced as part of a group that was defrauding Medicare on Lupron. Here, there was a new twist, not just the selling of the drug they got for free. These physicians actually purchased too much drug and sold the drug to Tap salespeople who resold the drug in other states for more money. The physicians then shared in the profit. The physicians got a fine of $1 million, and were sentenced to five years probation, 500 hours of community service taking care of indigent patients. I wonder if they will be removed from the Medicare program, the kiss of death for any physician. Top
A new party heard from. The American Dental Association has filed a federal lawsuit against Aetna. The suit is for the use of faulty data to reduce payments to dentists. Aetna insures 14 million people for dental care in the United States. Top
The Medical Society of New York State, a group of 27,000 physicians filed complaints against Oxford, Aetna, Empire Blue Cross and Blue Shield, United Healthcare, CIGNA and Excellus. The suit is for unfair and deceptive acts and routine breaches of contract. The health insurers complain the suit is not about patients but about doctor's pocketbooks. They do not state the action is about the insurers not paying the doctors what they are owed. They do not talk about their own profits, or lesser amount of losses, due to their fraud and negligence. The insurers complain that the suit is a copycat suit of the Conn. Medical Assn. They don't say they do the same fraud and negligence in both states.
Speaking of Conn., in a separate law suit from two years ago, Anthem Health Blue Cross and Blue Shield was sued by 16 orthopedic physicians for the usual insurer ploy of delay of payment and to ration treatment. The case was just certified for class action. This means that the 7000 Conn. physicians will all be plaintiffs and the costs could be huge to the insurers. The class action comes on not providing information in how the claims are paid, the failure of Anthem to maintain adequate books causing improper payments and that Anthem failed to provide senior personnel to work with physicians instead of the usual clerk.
The Florida Medical Assn has joined the medical associations from California, Georgia, Texas and multiple physicians in the suit against Aetna, Cigna, Coventry, Health Net, Humana Prudential, United and Wellpoint for fraud, extortion and racketeering.
Anesthesia Care vs Blue Cross of CA
CA Superior Ct
The court hearing the case has allowed class action status to the complaint. This will probably not be contested by Blue Cross. Top
St. Agnes Hospital in Philadelphia has been given a condition-level deficiency for its INR. A faulty number in the formula resulted in two deaths due to defective INR reports. This means the Department of Health can not attest to the reliability of the hospitals INR results and the hospital may not perform the test. St. Agnes had ten days to submit a correction plan. In a separate investigation instigated by St. Agnes of five deaths, two were caused by faulty INR and the other three by natural causes. The faulty test results were performed on 932 patients between June 4 and July 25. Here come the plaintiff lawyers. Top
US V Mitrione
CD Ill.
Two psychiatrists in Illinois were criminally charged with substitute billing in a Medicaid case. In federal court the court must follow the law of the state unless there is federal law on point. In this case Ill. law controls. Illinois law states that reimbursement is allowed either for direct service by the physician or a member of the staff under direct supervision of the physician. Another law states that psychiatric services may only be reimbursed under Medicaid when provided by a physician. Since these are contradictory the most specific holds. The court rejected the physicians argument that the payment forms allow the physician to state the services were performed under direct supervision. The court did state that the physicians were allowed to argue the forms are misleading and that they negate the intent aspect required for a crime. This basically wipes out the feds case for criminal but not for civil problems.
The FBI raided the Florida office of PolyMedica, a Mass. supplier of diabetic kits. Liberty Medical Supply offices were raided by about 85 agents looking for proof of Medicare fraud. The fraud included not telling Medicare when units were returned and mailing products to those who did not need them or were dead. The rumor of federal action caused PolyMedica its listing on the NYSE. Top
Poliner v Texas Health Sys.
ND Texas
Poliner was suspended from the hospital and sued for reinstatement due to malice of the peer review committee. He sought discovery of peer review records. The court agreed with the physician and allowed him access to those records of patients who were the subject of peer review, deposition of parties involved in the peer review meetings he attended, access to oral and written testimony relating to additional materials relating to sanctions, peer review processes and conclusions. The court did place a seal on the information so it could not be used outside of this case.
Virmani v. Novant
4th Circ
The 4th Circ. in Health has been asked to have an en banc hearing in a case regarding the ability of a physician to get the peer review records of Indian and non-Indian physicians in a case alleging national origin discrimination. The three member court that heard the case ruled that the physician was allowed to obtain the reports. This is being appealed to the full 4th Circuit.
Clark v West Shore Hosp.
6th Circ
A pathologist lost his exclusive contract and sued the hospital for not giving him an explanation and a hearing prior to the termination. The trial court issued a summary judgment in favor of the hospital and the 6th Circ agreed. Since the pathologist pled a breach of contract and there was no breach there could be no loss of due process rights. The hospital terminated the contract according to the contract notice provision. Top
Doe v Dartmouth-Hitchcock Med Ct.
D. NH
In a case that would fall under HIPAA in two years a woman sued a medical center for unlawful release of information. The woman, a psychiatric patient, was friendly with a female resident. When the friendship unraveled the resident accessed the hospital's data bank from her home computer via a special link offered by the university for the resident's use. The resident did not change any information. The woman was afraid that the resident had told others about the information. The law used in the suit was the federal Computer Fraud and Abuse Act. The woman lost since the language stated this type of activity was not contemplated by Congress. The University did no wrong, there was no damage and there could be no vicarious liability under the Statute. The court did state the woman would have a better case on invasion of privacy in state court. However, residents usually have no assets, so why sue.
Doe v Johns Hopkins
Arundel County Circuit Court, MD
In a suit coming to trial next month, Doe alleges that Hopkins released without authorization, information to a disgruntled former friend and business partner. He is suing for $12 million for loss of business and emotional distress issues. He was a psychiatric patient seen on several occasions between 1962 and 1970. Apparently the "friend" Hughes, who is now in jail for perjury in a harassment suit filed by Doe against Dorinda Hughes, falsified Doe's name on a consent form. Hughes then gave the patient's information regarding drug abuse to Doe's friends, family, business associates and clients. Doe claims that Hopkins did not compare the signatures or verify the mailing address before releasing his mental health information. Hopkins is defending on its "good faith" effort to comply with the stringent Maryland law. Top
Baker v Adventist health
9th Circ
Baker presented to a 40 bed rural hospital requesting a psychiatric exam. The ED had no capability to perform that type exam and called the county mental health. They stated the patient was not a candidate for involuntary hold and refused to see the patient. The patient was discharged. Two days later he committed suicide. The court stated, as did the lower court, that the hospital only has to provide a screening exam that is within the capability of the ED. Also the hospital did not have to stabilize since no emergency condition was detected. Lastly there was no disparate treatment noted as no one received a psychiatric evaluation in the ED. Top
Jeisema v Spectrum Health
WD Mich.
A physician specializing in maternal fetal medicine quit his paid hospital position but stayed on the staff. He was removed from the high risk call panel. He challenged the hospitals new policy of allowing only physicians who did not directly compete with the hospital to provide services to high risk patients. The hospital asked for summary judgment but the court denied the motion and asked the parties to focus on the product and geographic markets. This is the third case I have seen in the past year of the hospital not allowing competitors. The first one was won by the hospital. The second one was not a legal case since the current medical staff wanted to keep out interlopers and the out doctors have not yet challenged the ruling. This is the third. There will be more. Top
Roszelle v Tampton & North Collier Hospital
In a just filed suit the facts are that a couple adopted a newborn. The biological mother had taken OxyContin which passed to the fetus. The physician originally told the adoptive parents the baby would be watched for up to three days in the hospital but then released the baby at 30 hours after birth. The baby died 10 hours later. The baby was covered under the adoptive parent's health plan, UnitedHealthcare. The Mothers' Health Protection Act of 1998 states a minimum of 48 hours post delivery for normally delivered babies. Top
Sulzer & Hip Replacements
In a novel action, Sulzer is attempting to gather all the suits against it for faulty hip replacement into one class action suit. Sulzer has hired Richard Scruggs, the attorney that sued the tobacco industry and is presently suing HMOs. Mr. Scruggs will get over $1 million to attempt to do this and an additional $28 million if he can pull this together. The private plaintiff lawyers are against it because it hits them in the wallet, but they say it because of the patient. To date, 3253 patients have filed suit. The company is giving all class action participants a lien on its assets, thereby giving them priority status over other liabilities. If the plan is successful any patient that does not join may have no assets to attach for payment. The settlement offer calls for payments for all medical costs plus $97,500 to all patients who required secondary surgery and $ 2,750 to all that didn't require surgery. The payments would be part cash and part stock. There would also be an additional $30 million fund put aside for those extraordinary cases that should be paid more, $20 million for monitoring of patients and $4 million for research into the long term effects. Also, plaintiff attorneys would be paid about $30 million to be split among themselves. On August 29 a federal judge preliminarily agreed to the settlement action. Not bad for almost no work.
Reyes v Hardin Hospital
Kent. Supreme Court
Kentucky has now come up to the standard of the majority of the country in allowing law suits against public hospitals with liability insurance. In earlier years, prior to the purchase of insurance, public hospitals were immune from suit. The Kentucky legislature had passed a law in the 1960s that allowed the public hospitals to purchase liability insurance. Top
The use of the notorious guidelines are continuing to haunt the company and those HMOs that were dumb enough to use them. Medical Economics has several articles about the guidelines. Several of the pediatricians who were asked about the guidelines and thought they were bad have been named as part of the panel that approved the guidelines. False and deceptive, I would say. HMOs that utilized the guidelines as gospel and not with any thought are being sued for patient problems because of early discharge. Top
Two California cases have been reviewed by the judge and the amounts awarded to the plaintiffs reduced. In the first case, one by a patient against the tobacco industry, had a jury award reduced from $1 BILLION to $100 million or have a new trial. The patient took the money.
In the second case, one against a physician for not prescribing enough pain medicine, the judge reduced the award of over $1 million to the California statutory amount of $250, 000 for pain and suffering. This will be appealed since it was bought under elder abuse and not malpractice. The California law does not limit damages for elder abuse. The California legislature, always looking for ways to make laws, have passed a regulation to make pain control a mandated subject in medical education.
The 9th Circ overturned a $8 million award to a physician for unlawful termination from a school district by a district court. The matter had already been settled in state court and federal courts can not review state court rulings. Top
Bonta v Friedman
CA Ct. App 2nd
The California Appeals Court stated that the Medicaid program is entitled to lien and collect money from any settlement or trial damages from medical malpractice. It has been long standing that the program could recover for auto damages, but now under California Welfare & Institutions Code 14124.70 et. seq. the same is true in medical malpractice due to any underlying facts. Top
Regions Bank v Stone County SNF
Ark Supreme Court
Regions Bank, the representative for a semi-comatose SNF patient who was assaulted by an employee of the SNF. The court ruled that the employee was not acting in the scope of his employment when he committed the assault and there was no respondeant superior issue present. The employee committed a criminal act on his own. There was also no negligent supervision since the attacker had no prior history that would alert the SNF. However, the SNF was liable for failure to use reasonable care in protecting its patients from any harm. This is a duty directly to the patient and not via the employee. Top
The OIG in an Advisory Opinion stated that an agreement by a
health plan and SNF to waive Medicare coinsurance would violate the
anti-kickback rules. This involves the ability to avoid payment of the
cost sharing amounts. The full opinion is on the OIG site. Top
www.dhhs.gov/proorg/oig
Hall v St. Joseph Hosp.
NJ Super. Ct
The plaintiff goofed. The plaintiff sued the hospital for multiple episodes of not providing sign interpreters. The hospital stated they never asked for one. The court said each episode is separate and has its own statute of limitations. You can not add them all up and sue within the statute for the latest alleged infraction. The court also ruled that the burden of proof is on the plaintiff to prove there was not an accommodation, not on the defendant to prove that the accommodation was unduly burdensome.
Constance v State U. of NY
NDNY
A deaf husband and wife sued for lack of an interpreter for the wife's stay in an ED. The hospital had called for an interpreter but the person never showed. The communication between staff and patient was by writing and finger spelling. The plaintiff lost since the lack of an interpreter was not due to deliberate indifference. Top
Schmidt v Ottawa Med. Cntr.
ND Ill.
A shareholder physician of a corporation sought to be an employee and covered under the age discrimination laws. He lost. His amount paid him per year was less than non-shareholder employees and were due to his lack of production and his share of expenses. 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.