September 15, 2012 Recent Legal News

Peer Review and Employment





Peer Review and Employment

Fahlen v Sutter Central Valley Hospitals
CA Ct App

Dr. Fahlen, nephrologist, complained to Modesto Memorial Hospital nursing and administrative leaders about what he considered poor nursing.  The nurses complained about Dr. Fahlen.  The hospital fired the doctor.  The medical staff reviewed the cases and backed the physician.  The hospital fired him anyway.  He did not seek a review of the Board decision but filed suit under the 2007 California Whistleblower Law.  The law states that a physician who reports substandard care can go directly to the courts and bypass administrative hearings.  He won the summary judgment case and the hospital is not happy.  Good going Steve.

Gentilello v U of Texas Southwest
ND Texas

Dr. Gentilello, a tenured professor a professor, filed a fraud claim against the University stating that it billed erroneously for resident's work.  He then sued the University again after they retaliated against him for his original suit.  He settled all the claims against the University except the retaliation claim.  This was dismissed since you can not sue a state actor.

Harris v Bradley Memorial Hospital
Connecticut Supreme Court

Dr. Bradley sued the hospital after he was summarily suspended.  This case started 12 years ago.  They finally decided that he can not sue because of HCQIA.  Think of the money wasted on both sides with a full trial that the physician won and then had reversed and all the appeals when this was known back when the case started.

Ginsburg v Aria Health

Dr. Ginsburg and another anesthesiologist complained to the administration after being harassed by a cardiac surgeon.  For some reason the hospital did not act except to fire the complaining physicians.  Money??  The physicians then sued for retaliation and discrimination.  The hospital said since they did not employ the physicians, another entity with a contract with the hospital did, they should be exempt.  The court did not agree since they had control over the work environment and therefore the physicians were like employees.  The court went on to state that the physicians pled enough facts for both the retaliation and the discrimination claims.  The conduct was enough to support the emotional distress and assault claims. The court denied the breach of contract and whistleblower claims.  This hospital is in deep financial and moral do do.

Som v Natchez Med Ctr
Miss Ct App

Dr. Som was summarily suspended after multiple complaints.  He was given a hearing but filed suit since the hearing was delayed.  He, of course, lost.  His main complaint was that his attorney but not he was allowed to cross examine witnesses.  Not only was the argument thrown out but then the court went on to say HCQIA pre-empted the suit.

Mendoza v Health Net

Mendoza and another patient along with the Los Angeles  Medical Association filed suit against Health Net for its alleged illegal denials of payment for medically necessary procedures.  Penner, the other plaintiff, had to have California intervene to get payment. Mendoza paid $30,000 out of pocket and has not been reimbursed.  Health Net is a managed care organization (HMO) and this type of organization has a history of denials of payments.  Last year the state had 1400 complaints and upheld 39%.  The rest were overturned internally prior to a ruling by the State.     

Colhima v St. John Med Ctr
10th Circuit

Dr. Colhima was suspended from doing cardiovascular privileges at the hospital after two bad cases.  He had a hearing and lost.  He then sued for injunctive relief and damages.  He lost the damage claim to HCQIA and the injunctive claim allowed the court to look at the antitrust claims which were without merit since Tulsa had plenty of CV surgeons.  He also lost his state claims and to make matters worse also had to pay the hospital's costs.    

Lundeen v Kelly
SD Indiana

Dr. Lundeen's medical license was permanently suspended in Ohio for a danger to patients.  Indiana then took his license as well.  He sued Indiana for injunctive relief to get back his license.  He lost since Indiana had the right to revoke his license because of Ohio's revocation.  He also was found to probably have no major loss due to the revocation since he could not prescribe narcotics due to the loss of his DEA license and was basically unemployable.     Top


Illinois v Nunez

Alberto Nunez was arrested by police for posing as a dentist.  He had been in practice for several years and had been seeing 20-30 patients per week.  The only problem was he had no license.  He may or may not have gone to dental school in Mexico.         Top       


US v Pyle
SD Ala

The physician filed a writ in order to overturn a plea bargain in a fraud case.  She pled guilty to one count of drug trafficking  on her attorney's advice.  The attorney had told her she would serve no jail time and be allowed to keep her license.  He did not tell her that she would lose her ability to see fed med people for five years.  The court agreed that she had substandard legal counsel and granted the writ to change to plea to not guilty.

US v Clark

Dr. Timothy Clark of Mechanicsburg, Pennsylvania, has been indicted on health fraud and money laundering.   Dr. Clark is a pulmonologist and sole owner of Central Pennsylvania Sleep Centers.  He is accused of upcoding the times his employees spent with patients at Holy Spirit Hospital.  Several month ago he was accused of embezzling money from his employee's pension plans.  That charge is awaiting trial.

NY v Downtown Hospital

The hospital agreed to pay a fine of $13.4 million for Medicaid fraud.  It was accused of unlicensed and unnecessary alcohol and drug abuse programs.  This came from a whistleblower.

US v Natale

Dr. John Natle of Chicago, a vascular surgeon, was accused of healthcare fraud and mail fraud.  He was found innocent of this but was found guilty of giving false testimony and sentenced to 10 months in prison and a fine of $40,000.  The false testimony was both in his operative reports and at trial.

US v Hospice of the Comforter

The government has joined a suit filed by a whistleblower against the hospice for taking in patients that did not fit into the definition of hospice care. There is potential overbilling here of $11 million.

Palomar Med Ctr v Sebelius
9th Circuit

In one of most stupid decisions I have read in a long time the courts decided that medical providers (hospitals or physicians) may not challenge any RAC decision to open a case against a provider for good cause.  There is no definition of good cause but that is the only way a RAC may open a case that is between one and four years old according to Medicare regs.  It would be nice if Congress intervened but they could never agree whether it is day or night.  

US v Firempong

Dr. Owusu Firempong of Los Angeles, now currently residing in the Federal prison for an unrelated Michigan cocaine trafficking and money laundering case, has been convicted of five counts of health fraud for submitting $1 million in false claims in seven months.  Sentencing comes later.        Top


Chevalier v Kaiser
CA Superior Court

In an unusual court case against Kaiser for malpractice the patient had an appendectomy at the hospital even though he was not a Kaiser member.  He developed MRSA which left him a paraplegic.  The jury awarded over $5 million but found the patient 70% liable and therefore Kaiser had to pay $1.5 million in damages for not telling him of the diagnosis.  They claimed they could not locate the patient but in fact had contact information for a relative they did not use and when he called to schedule his postoperative follow up appointments he was told it would cost him $100 per visit.  The hospital tried to blame this on the patient but they had a chance to tell him when he called.  The infection was probably from the IV site since he was in the hospital for five days and it went from there to his spinal cord.  He could sue instead of arbitrate since he was not a Kaiser member and had not signed an arbitration agreement.

Swaim v 1-800-GET -THIN

The patient is suing due to the loss of her stomach.  The lap band was placed as to constrict the blood supply and cause the stomach to be removed.  The attorney for the defendants say it is Bakersfield Hospital that is responsible because they did not treat her immediately when she came to the ED.

Seaton v Patterson
Ky Ct. App

The patient had a penile procedure which showed carcinoma.  The physician then removed the penis.  The question revolves around consent.  The patient claims he only authorized a circumcision but the consent form was very general.  It does not sound like the physician had any discussion with the patient regarding the penectomy nor the other options.  The patient also sued the hospital where the procedure took place and this was settled for an undisclosed price.  The article did not state how the jury ruled.        Top


Patients v U. Miami
To be Filed

The University of Miami has had their personal information stolen by two employees.  The two accessed the hospital facesheets of patients.  This follows closely after an employee at Florida Hospital Celebration Health accessed 760,000 records.  That person was arrested after admitting selling the list to attorneys and chiropractors.  

Resnick v AvMed
11th Circuit

In a class action suit that lost in the lower court on summary judgment, the 11th Circuit partially reversed and allowed some of the suit to go forward.  The court ruled the plaintiffs had standing as their unencrypted information was on a laptop that was stolen from the offices.  They had causation and an injury so could so for unjust enrichment and breach of contract.  Some of their premiums were paid to protect their information.  They lost their other claims for breach of fair dealing and negligence per se.         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.