August 15, 2013 Recent Legal News


Peer Review and Employment





US v 7 Oncologists

Seven oncologists in the Cleveland area were charged with importing cancer meds into the country that were not FDA approved.  One can understand why they did this with the meds now not being paid in full by CMS.  However, it is illegal.  They each face a possible $100,000 fine and one year in jail.

US v Fata

Dr. Farid Fata of Oak Park, Michigan, an oncologist, was accused of misdiagnosing patients with cancer so he could make money treating them.  The feds aren't screwing around here.  They have set bail at $9 million and the court has ordered him not to practice medicine until the trial is over.  

US v Maryland General Hospital

The hospital has agreed to pay $750,000 for overbilling on cardiac testing.  This stems from a whistleblower suit from someone who worked in the finance department.  He will get $119,728 for his trouble.

US v PharMerica

The feds are going after the pharmacy that dispenses to long term facilities controlled substances without physician prescriptions and then illegally bills CMS for the meds.  They want triple damages.  This will be settled for big bucks.  It is a whistle blower suit by a pharmacy operations manager.

US v Durrani

Dr. Abubakar Atiq Durrani of Mason, Ohio, was indicted for doing unnecessary spinal surgery and illegally billing Medicare for the procedure.  He also is accused of making false statements to patients and hospitals as well as insurers.  This includes telling a patient that his cervical spine is so diseased that if he does not have it fixed immediately his head might fall off if he is in a car accident.        Top

Peer Review and Employment

Traina v OSF Healthcare
Ill App Ct

Dr. Traina, an orthopedic surgeon, got bad legal advise.  A review of his work showed a higher than normal revision rates.  He requested and received an outside review that confirmed the result.  He was asked to resign his privileges, get further training or go through a peer review hearing.  He picked the latter and lost his privileges.  He sued for the usual reasons and to no one's surprise lost in the summary judgment hearing.  The appellate court agreed with the lower court that he got from the private hospital all that was required, notice and a fair hearing.  

Schmitt v MeritCare Health system
North Dakota Supreme Court

Dr. John Schmitt was employed at Dakota Clinic and then at MeritCare.  He quit in 2007 and sought locum tenen.  He was hired by another hospital but that hospital wanted information from MeritCare.  MeritCare would not send all the information unless Dr. Schmitt signed a contract that he would not sue based on the information submitted.  The doctor signed the contract after his offer of employment was rescinded.  The information sent to the asking hospital was truthful and the only negative was that he was asked to complete an action plan based on insensitive comments and irritability with others.  He left prior to completing the plan.  He sued MeritCare even though he agreed that the information was technically correct.  He lost in summary judgment.  I have no idea how this could get to the higher courts.

Feygina v Hallmark Health System
Mass. Super. Ct.

The physician sued the system for unpaid wages.  He also wanted prejudgment interest and compensation for increased taxes.  What he got was compensatory damages trebled for his loss.  He got nothing else but triple the wages owed ain't bad.  I do not know the back story but it certainly sounds like bad legal advise to the hospital.

Worley v Providence Physician Services
WA Ct App

Nurse Worly worked at the orthopedic clinic for about a year when she was terminated.  The law is that she could be terminated at anytime for no cause unless it was against public policy.  In this case she had been warned twice about her performance.  The last time was the day prior to her complaining about compliance issues internally.  However, as part of her complaint she took front sheets from patient charts to show HR and also showed them to her boyfriend.  I have no idea why this case was appealed.

Rochling v VA
8th Circuit

Dr. Rochling sued because the hospital system settled a medical malpractice case and then reported him to the NPDB.  The hospital unilaterally determined that their settlement was also for the benefit of the physician so they reported him as required to the NPDB.  This is a bad suit but a good reminder that when one signs on to be employed by an organization the contract should be looked at for red flags such as the ability to settle a med mal case without the permission of the physician.        Top


US v Kwiatkowski
Plea Deal

David Kwiatkowsi, the person who have hepatitis to multiple people while working in a hospital, has agreed to forego a trial just be sentenced on 14 drug counts .  He will get 30-40 years in prison. He had worked in 18 hospitals none of which caught him stealing drugs and replacing them with his contaminated blood or if they had did not forward that information to the appropriate people.  Other hospitals screwed up by not checking the reference.        Top


California Supreme Court

Parents of four diabetic children along with the American Diabetes Association sued California to allow their children to give themselves their own insulin and other medication injections instead of a RN doing it.  The state compromised and said that adult trained but non-licensed people could give the shot.  The CNA then sued and won in the lower courts but lost at the Supreme Court.  The Court said it was ludicrous that a child can given himself a shot but a trained adult could not.

Arce v Kaiser

The class action suit against Kaiser for illegally refusing to provide behavioral therapy for autistic children was settled for the paltry amount of $9 million.  Kaiser made much more than this by not paying for the care.  It is now a California law that HMO's must cover this care as medical and not educational.  The money is to repay any Kaiser member who paid for the treatment out of pocket and if any left over it is to go to autism research.        Top


Patients v M2Comsys
To Be Filed

Cogent Health contracted with M2Comsys to transcribe care dictations.  The company thought they put the information on a secure web site but it was a public site.  This exposed the information of 32,000 Cogent patients across the country. The business associate M2Comsys is now liable for monetary sanctions by the feds.  Could this have happened with paper records?  

OCR v Affinity Health Plans

The feds have fined Affinity Health Plans $1.2 million for their not deleting patient information off of a copier hard drive before getting rid of it.  Who purchased the copier?  CBS News did and found the information.  Almost 345,000 people may have been affected by the breach. This is a good reminder to all those who use electronics that fax machines, copiers and other electronics have hard drives that need to wiped prior to getting rid of the machine or returning them to the leaser.         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.