The Lighter Side of Health Law – July 2018

AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments.

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Transcript

Speaker 1: 0:00

Hi, I'm Norm Taber, host of the A H L A podcast series speaking of health law, where we focus on the lighter side of health law. I hope you enjoyed this month's edition, the Broken Kettle Defense. Remember learning your first year in law school that a defendant may state as many defenses as it once, even if they're inconsistent. The classic case is the defendant accused of breaking a borrowed kettle. He was allowed to plead that, a, he never borrowed the kettle. B. It was broken when he borrowed it, and C, it was unbroken when he returned it win. Noah Peebles apparently knows the rule. She was an accounts clerk for a local hospital. When she was fired, she sued the hospital alleging retaliation for filing an E E O C complaint. The hospital countered that she was actually fired because she had handed out the personal email addresses of board members to a debt collector in violation of hospital policy, and then lied about it at various points in the litigation win. Noah said that, a, she did not give out the addresses. B, she gave out the addresses because her job description required it. C, she gave out the addresses because the executives would not return the debt collector's calls. And D, she can give out the addresses if she wants because it's not against hospital policy whether you complete inconsistent defenses, but the judge isn't required to believe any of them, and this judge didn't. He threw out win Noah's case, awarding the hospital summary judgment. The case is Peebles versus Green County Hospital Board, Northern District, Alabama, the orthopedic surgeon who pretended to be an orthopedic surgeon Back in the seventies, Woody Allen made up a whimsical list of mythological beasts. One of them had the head of a lion and the body of a lion, but not the same lion, the beast comes to mind in reading the federal indictment of a New York orthopedic surgeon who pretended to be a New York orthopedic surgeon, but not the same New York orthopedic surgeon. Why would Dr. Spiros Panos pretend to be the doctor referred to in the indictment as Dr one? The answer is that Dr. Panos had lost his own medical license, served four and a half years for healthcare fraud, and was still on supervised release. He couldn't practice under his own name, so he stole the identity of Dr one and worked under that name for a company one he created that performed peer review of workers' compensation cases. According to the indictment, insurance companies paid him over$860,000 for the reviews. The indictment charges him under his real name with wire fraud, healthcare fraud, and aggravated identity theft. The case is US versus Panos, Southern District New York, vertical integration in healthcare fraud. For years, we've seen the spread of vertical integration in healthcare as when a system includes hospitals, medical groups, labs, and insurance. So maybe it was inevitable that vertical integration would come to healthcare fraud. Federal authorities in New York City have announced the indictment of five people accused of a slip and fall insurance scam. But this scam didn't involve just one person or even just one element of the scam. It included people who took the alleged Falls Scouts to identify good places to fall and designated attorneys, chiropractors, and doctors, even lending companies. That's right. Lending companies.

Speaker 2: 2:59

You see sometimes the so-called victims underwent surgery, unnecessary surgery to increase damage awards. The victims needed cash to pay for the surgery. So the lending companies made high interest loans knowing they get repaid when the settlements came in. The indictment says the scam even included a training program instructing victims on how to fall in fake injuries. And according to the indictment, the instructor knew what he was talking about because he's a former chiropractor, the five were charged with wire fraud and his scheme to obtain fraudulent insurance proceeds. The case is US versus Cal Canis, Southern District, New York Law versus Justice. When a judge says you have justice on your side, it's gonna rule in your favor, right? Well, not necessarily. Dr. Bob Feiss confirmed that he qualified for the Medicare Primary Care Incentive Payment Program as of the start of 2011. When 18 months passed without a payment, Bob called the CMS contractor, which confirmed that CMS had miscoded him as an emergency medicine physician when he still hadn't been paid. By the end of 2013, he contacted cms, which agreed to correct its mistake, but CMS took the position that his qualification couldn't start until 2014 when it finally corrected its own miscoding mistake. When Bob sued for the$40,000 he was owed for 2011 through 2013, the government did not deny that he deserved it. Instead, it rested on the federal statute prohibiting judicial review of the CMS coding system. Reluctantly, the court agreed and dismissed Bob's case with an opinion that opens with a statement. This is not a just decision, but it is one that the law requires. So if you have to choose between having the law or justice on your side, you better choose the law. The case is Vice versus us. US Court of Federal claims hoist with his own pitard. When Hamlet said that Claudius was hoist with his own pitard, he meant that he Hamlet had turned the tables on Claudius by getting his henchman killed. So Claudius was figuratively blown up by the pitard. That little round bomb that spies Carrie in cartoons meant for Hamlet. Oscar Sanchez personifies the quote as an executive with Maquet cardiovascular. Oscar had access to sensitive confidential documents. He had signed confidentiality and non-disclosure agreements after being disciplined for misbehavior. Oscar told a fellow executive that he had retained copies of sensitive company documents as a quote burn file that he would use to get the company only. He didn't say get if they fired him, and they did. So he filed a whistleblower retaliation suit under New Jersey law and turned the burn file over to his law firm. In response to acquits discovery motion, Oscar's firm produced the documents, including correspondence with attorneys and documents marked attorney-client privilege. Maquet moved for an order, a precluding Oscar from using the documents, and B, this should get your attention disqualifying Oscar's law firm from the case. The trial court granted the motion without even holding a hearing, and the appellate court unanimously affirmed. So Oscar was burned by his own burn file and his law firm was burned along with him because the firm had failed to inform McQue as soon as it knew it was holding privileged documents. The case is Sanchez versus McQue. Superior Court of New Jersey Appellate Division hold the spaghetti. Here's a practice tip for all attorneys. Whatever their specialty, if you lose your temper in an Italian restaurant, don't throw a plate of spaghetti at your opponent. At least not if innocent bystanders are in the area. Attorney Jim Sweeney disregarded this practice tip. When he threw his plate of spaghetti at Mike Cosmos, it hit bystander Constance Coaly in the head, hot pasta and sauce dripped into her eyes and she fell and suffered a concussion. When she sued for her injuries, Jim argued for what might be termed a change of menu, insisting that the pasta topping was not hot and spicy fr Diablo as Constance claimed. But the milder cavelli with sausage and broccoli apparently unmoved by Jim's Cavelli defense, the jury awarded Constance over$100,000. The case is Comey versus Sweeney, Connecticut Superior Court. Well, that's it for this month's edition of the A H L A podcast series. Speaking of health law, I hope you enjoyed it. Check your A H L A Weekly and Connections magazine for the next edition of Speaking of Health Law.