August 1, 2014 Recent Legal News



Fraud and Antitrust

Peer Review and Employment




Maglio v Advocate

For the second time Illinois hospital Advocate has gotten a class action suit dismissed for lack of standing and failure to prove damages.  Last year Advocate was robbed of computers with unencrypted PHI of over 4 million people.  This led to the prominent placement in the Hall of Shame in the HHS Office of Civil Rights.  The system has more class action suits coming up.  Think of how much they are paying in attorney fees and what it would have cost to encrypt the data.  Stupid hospital.

Patients v Sutter Health
Ca Ct App

The California Court of Appeal dismissed a class action suit against Sutter for having a computer with four million records in it go missing.  The court said in the $4 Billion suit that no one had proved their records had been accessed.  No harm, no foul.  Bye Bye Sleeze Attorneys and $4 Bil.

US v Love

Lauri Love has been indicted for hacking into federal computers and causing $5 million in damages.  He found a flaw in Adobe Coldfusion before it was patched.  He faces if convicted 10 years in prison.        Top


North Carolina Board of Dental Examiners v FTC
US Supreme Court

The high court announced they will hear oral arguments in the fall on the case where the Board would not allow dental hygienists to use hydrogen peroxide to whiten teeth in spas etc.  The FTC accused the Board of monopoly power since dentists make a lot of money whitening teeth.  If the Board wants to allow dentists to make scope of practice decisions that are self serving the state need to actively supervise the Board.  That is not the case in the state.  The issue is if the FTC does have the power to force its will on state medical boards and does antitrust trump public health.

Johnson v Office of Personnel Management

Wisconsin Senator Johnson filed suit against the Office for allowing the government to pay subsidies of about 75% for Congress' Obamacare insurance.  This is not based on need but want.  The federal judge said that Johnson's claim had no significant harm that needed to be redressed.  

Halbig v Burwell
DC Ct App

The schizophrenic legal system is at it again.  In the DC case the appellate court ruled 2-1 that the feds could not subsidize Obamacare premium payments in the states not covered by the website.  This same facts were decided two hours later in the Virginia Federal Court 3-0 that the feds could subsidize the state exchanges.  This sets up a quick visit to the Supremes.  The feds are requesting a full en banc hearing in the DC court to attempt to stop the case from going to the Supremes.  That won't matter since the Virginia Court already certified their case for appeal to the Supreme Court.

Physicians v Florida
11th Circuit

Florida is the only state with a law that says physicians may be disciplined for free speech.  In a 2-1 decision that is to be appealed to the full court, the 11th stated the law which is about asking patients about firearms is not about free speech but only about patient care.  The court said that asking about firearms when there is no medical reason to do so may not be good medicine and physicians may be disciplined for not practicing good medicine.  I am not anti-NRA but hopefully, this will be reversed.

Sissel v US
DC Ct App

In yet another challenge to Obamacare Sissel did not want to pay for health coverage.  He challenged the "tax" of Obamacare individual mandate saying it did not originate in the House which is required under the constitution.  This is another case to be appealed to the Supremes.  The court said the "tax" is only incidental to the insurance.  I don't get it either.        Top

Fraud and Antitrust

Baklin-Kunz v Halifax Hospital

The district court ruled that the feds must prove more than just violating Medicare's conditions of participation for triple damages.  In an interesting case the whistleblower asked for $200 million but the judge said that the lack of a physician's signature on an admitting order is only a problem with the conditions of participation.  CMS has since make the signature a condition of payment.  The ruling caused the parties to settle the suit for $1 million.

St. Alphonsus v St. Luke's
D Idaho

In the ongoing antitrust battle in Idaho between the two major hospital systems the winner by far is St. Alphonsus.  They won the original antitrust suit stating St. Luke's must divest Salzer Medical Group.  They now have won the second round where the judge stated the divestiture must occur prior to the appeal decision.  The 9th Circuit reversed the judge and said that Salzer can stay with St. Luke's until the appeal which will be expedited.  

Horisons Unlimited v Santa Cruz-Monterey Managed Med Care Comm.
ED Cal

In a case of miscarriage of justice Horisons is a MediCal Clinic  was discriminated against by the HMO and the county by working slower or not at all in credentialing their providers. The Plan that needed to credential the providers has on its board the CEO of the only other plan in the area.  Could there be a conflict of interest?  The court dismissed the antitrust claim of having only one clinic in the county since that was allowed.  The allowed the clinic's claim of conspiracy but said there could be no damages.  The clinic is going under.

US v Pruchneiwski

Dr. James F. Pruchneiwski of Lakeland, Florida pled guilty of health care fraud.  The podiatrist is alone in the office with no PT person.  He billed for MVT, a non allowed Medicare service as PT but did not do any of it himself, an unlicensed person did it.  This is against Medicare.  He billed for $400,000 of this service and received $58,000.

US v Fenn

Jeffery Fenn DC of Wichita, Kansas pled guilty of health fraud He employed physicians and others to do things he was not allowed to do as a chiropractor.  He lied to the state telling them the physicians were part owners of the clinic.  He also lied on his income tax.  He is to be sentenced later.

Heesch v Diagnostic Physicians Group
SD Ala

Dr. Christian Heesch is now very rich.  He filed a whistleblower suit against Mobile Alabama Diagnostic Physician Group and Infirmary Health Systems for paying money for referrals.  Infirmary was paying Diagnostic physicians for their referral of patients.  They were warned by an attorney but continued the practice.  They are now paying $24.5 million to the feds of which $4.41 million will go to Heesch.  He no longer has to worry about EMRs.

Masri v Medical College of Wisconsin
Wisconsin Supreme Court

In a reasonable legal decision but a terrible precedent, the Wisconsin Supreme Court stated that since Ms. Masri was an unpaid intern at the time of her dismissal from the college after she reported an illegal act done by the college, she was not entitle to whistleblower protection.  She was dismissed after she reported she was told to falsify a record to help protect against a med mal suit.  

US v Mahmood

Dr. Tariq Mahmood of Cedar Hill, Texas, was convicted on 15 counts of healthcare fraud.  He changed codes to defraud the government and did identity theft.

US v Barsoum

Dr. Nabil Barsoum of Florida has agreed to pay $335,000 to settle allegations that he lied about the codes for in-office urine drug testing.  At times the government claims he under coded to not be detected and others billed for higher codes than he actually performed.

US v Sanford Health

In a very slanted story Argus tell about a whistleblower suit that is questionable.  It is used to sensationalize a probable legal deal.  Sanford Health paid money to several people for something related to the implantation of a spinal device.  The story is opaque about what the money was paid for.  The story is mainly about a completely legal deal where a physician designs and manufactures a device and his company pays him.  Since the settlement was six months before the story it seem a little like yellow journalism from a small town paper.

US v Buchillon

Armando Buchillon, RN., of Hialeah, Florida, pled guilty of defrauding the feds by paying kickbacks and lying on forms to make people seem they qualify for home health.  He was head of nursing of Anna Health.        Top

Peer Review and Employment

Brown v Cooley Dickenson Hosp
Mass App Ct

Brown won a judgment of compensatory and punitive damages against the dumb hospital for sexual harassment and retaliation.  The idiot hospital allowed sexual harassment against the nurse to continue after being told and then compounded their error by firing the nurse for trumped up charges.  The hospital was stupid enough to purge the good performance reports from the nurse's file.  The jury believed the nurse and not the hospital and the court refused the hospital JNOV and the hospital appealed and again lost.   Either a very dumb hospital or very poor legal advise.

Montone v Schuylkill Health Sys.

The Director of Patient Accounts who had a spotless work performance record for thirty years was fired after taking FMLA leave.  Her boss would not let her take any time off unless it was under the Act.  She has a new diagnosis of MS and wanted some time off which was disallowed.  She took a Friday and Monday off under the FMLA and was fired the next day.  Can you imagine a hospital so stupid?  The judge obviously disallowed the summary judgment motion and said to trial.  Hopefully this will cost the hospital many hundreds of thousands of dollars.  

Clark v Atlanta Emergency Services
Ga Ct App

 Dr. Clark was employed by the Atlanta Emergency Services and got in trouble with a hospital for poor relations.  Her contract allowed a 60 no cause termination and she received the correct notice but not in writing as required.  After one month she was notified she was being immediately terminated at the request of the hospital administration.  She sued and found out the Atlanta Emergency Services lied about the hospital administration.  She won the jury verdict of the amount owed for the month plus attorney fees.  The attorney fees are allowed since she was terminated in bad faith.  Three cases in a row of very poor employer behavior.

Luke Romero v County of Santa Clara

The anesthesiologist complained to the administration about the care rendered by the chief of pediatric anesthesiology.  Within a year after the complaint he had five peer review actions against him.  He had no actions in the two years prior to the event.  The court denied summary judgment to the hospital on the retaliation.  Still another poor hospital conduct.

Lin V Dignity Health-Methodist Hospital of Sacramento

The cardiologist was placed on summary suspension when the hospital said a faulty blood transfusion was performed.  She proved it was not faulty and stated her suspension was in retaliation for a prior report she made against the chief of internal medicine who did a colonoscopy on an unstable patient that died.  She said as much in a Death Discharge Summary.  She sued and lost on (1) a legal fiction in the state called SLAPP and (2) not attending her peer review hearing.  It should be noted that her attorney at her suit ( I do not know if the same one represented her for the peer review) was not a health care attorney but an employment attorney.  Since she did not attend her peer review hearing she did not utilize her administrative remedies.  Not bright.

Varughese v William Beaumont Hospital
ED Mich

The Indian nurse had a good employment history until she made a transporter give medicine to a TB patient.  She would not go into the room since there were no masks for her.  She was fired for not doing her job and allowing someone not licensed to give medicine.  She sued and lost since she did not do the essential tasks of her job.

Jones v Temple University

The black female radiologist who often expressed her desire and indeed did work part time sued because she did not get consideration for the chair job which was full time.  It went to a white male.  When budgetary problems hit the part time position was removed and her along with it.  She thought she was discriminated against.  The court did not agree.

Bejar v Gibson
D Kan

The Ecuadorian neurologist worked at the VA and over 20 years filed seven EEO complaints. He stated he was given extra work due to his ancestry and EEO complaints.  He also complained that he was given female patients to examine.  soon after that complaint a female complained against him.  No one investigated the complaint and he was suspended.  He sued for retaliation and discrimination.  He lost because he did not exhaust administrative remedies.  Hospital won summary judgment. 

Rouhani v Bronson Battle Creek Hosp
Mich Ct App

The female Indian psychiatrist had three letters against her and was called to the VPMA office for a consult to help her improve.  She alleges he fondled her hand and after her consults decreased.  She never could prove anything and her case was dismissed in the lower court and in the court of appeals.  The question is why was the case filed without any proof and why was it appealed.  There was no evidence that the alleged harassment led to any adverse action.  

Wheeless v Maria Parham Med Ctr
NC Ct App

In a case of wanting your cake and eating it too, an orthopedic surgeon had been terminated from the staff but reached a deal with the hospital to allow him to continue.  The surgeon complained on many occasions about the hospital not living up to their end of the bargain.  he finally filed a suit against the hospital for many things including emotional distress.  The hospital asked for his psychiatrists records and he objected.  The court rightly said you opened the door by asking for emotional distress.  The records are free game.

Wheat v Rush Systems Center
SD Miss

The hearing impaired nurse was hired and then accepted a position as circulating nurse.  He was then removed from the position and after some time on paid administrative leave was asked to take a different position but at a lower pay.  He quit and filed an ADA suit.  The court rejected the hospital's request for summary judgment since he had shown good performance reports and the hospital had said some physicians did not want him because they did not like saying things twice.  

Bhanusali v Orange Regional Med Ctr
2nd Circ

The Indian othopod had after peer review his privileges suspended.  He sued for discrimination and antitrust.  His original discrimination was dismissed with leave to amend.  He appealed and the 2nd circuit reinstated his discrimination complaint and got rid of the antitrust complaint.  The pod said in his amended complaint that in peer review none of his cases had a bad outcome nor patient complaint.  This was enough to overcome summary judgment.        Top


Robinson v Reynolds

In a verdict sure to be overturned in Florida the widow of a man who died from smoking was awarded the ridiculous sum of $16.8 million in compensatory damages and an additional $23 Billion in punitive damages.  This verdict screams to be overturned.  They did not have to prove the company sold a dangerous product nor that it hid information.  All they proved was that cigarettes are addictive, the smoker was addicted and smoking caused the illness or death. 

Patients v Johns Hopkins

 Hopkins agreed to pay $190 million to 8000 patients for allowing Gynecologist Dr. Nikita Levy to video tape pelvic exams.  After being found out he committed suicide.  

Banks v Princeton Baptist Medical Center

Mister Banks went into the hospital for a circumcision and came out with a penile amputation according to the complaint.  He is suing the hospital and the urologists.  His wife is also suing.  The hospital states the claim lacks merit.  Not if true.

Lawyers v Lawyers

Two lawyers filed and won multiple law suits for damages due to breast cancer secondary to Prempro.  They did not like the $9.2 million attorney fees they were allotted after the settlement. They complained to the court and got $21 million for their services.  This award required cutting the fees allotted to the other attorneys.

Hipps v Virginia Mason

In a wierd case seen on Sermo, Hipps had abdominal cancer.  The problem was his wife, an anesthesiologist at Virginia Mason.  She micromanaged who she wanted to care for her husband.  As part of the planned surgery, he needed to have a ureteral catheter placed for ease of the surgeon.  The wife picked the female head of the Urology Department Dr. Kobashi, specialist in female urology, to place the catheter.  In the pre-op room Mr. Hipps was consented by a "fellow" Dr. Chong Choe and the form named him to place the catheter.  According to the complaint, the patient and his wife specifically said only Kobashi was to do the procedure.  Kobashi never showed for the surgery at all, ever.  Choe did the stent placement.  Post operatively the patient complained of paid which the plaintiff says was not addressed.  They saw an outside physician who diagnosed a urethral stricture (obliterated urethra, according to the complaint).  They then got the OR records and found out Choe did the procedure. The patient has had several urethroplasties to fix the problem.  The original consent form has been destroyed and the electronic one says Choe.  They are suing the hospital for battery (unconsented to touching) and malpractice by Choe.  Should be a fun case.  I wonder how many zeros will be written on the check.

Albright v Boston Scientific
Not Guilty

In the first case against the vaginal mesh maker, Boston Scientific won.  There are 12,000 more to go.  Prior cases against J&J and Bard have been won by the plaintiff.

Matta-Rodriguez v Ashford Pres county Hosp.

In yet another PR case that makes no sense, the plaintiff sued the hospital for EMTALA violations in federal court instead of med mal in the local court.  Again, the plaintiff lost since there obviously was no violation.   There may have been med mal but that will now have to wait.  The plaintiff came to the ED with symptoms of acute cholecystitis was admitted worked up and released.  She then came back with more symptoms and was found to have bile peritonitis.  She died.          Top


New York v Li

Dr. Stan Li, an anesthesiologist in New Jersey had a side job.  On weekends he would do pain management in New York. He saw 70-100 patients a day in a basement office and gave out multiple pills including some that caused the deaths of two patients.  He was convicted of manslaughter.  He faces 75 years in prison.        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.