Holland & Hart Healthcare Law Blog

PHYSICIAN FINGERED IN INSIDER TRADING FRAUD

 

Police arrested Dr. Yves M. Benhamou,  a French physician,  in Boston recently, charging him with leaking information to Front Point Partners a hedge fund owned by the investment bank, Morgan Stanley.  Benhamou, one of five physician overseeing a clinical trial of the drug Allbuferon developed by Human Genome Sciences, Inc. for the treatment of Hepatitis C. He  is alleged to have tipped off Front Point that there were problems involving the death of several patients in the trial.  Dr. Benhamou was apparently on retainer as a medical consultant to the hedge fund, while he was overseeing the clinical trials. Its kind of like having your mother on the jury. Chris Skowron, a doctor employed by Front Point to oversee its health care investments, is on administrative leave.

 

HOSPITAL CONFLICT RESOLUTION POLICIES.

 

Most hospitals today have adopted policies for dealing with disruptive conduct within the hospital setting.  Most of these policies relate to forms of harassment, intimidation and violence.  There are of course the omnipresent “disruptive physician” policies that relate to physicians acting out in unprofessional manners like berating staff and throwing hissy fits generally.  There are many more subtle forms of conflict between hospital administration, its medical staff, its medical staff leadership and its governing body. The Joint Commission Standards have evolved with a growing focus on the resolution of conflict at all levels of a hospital organization, with the understanding that all dissension has the potential to affect patient safety and outcomes if left to fester.

 

JOINT COMMISSION MANDATES CHANGES IN HOSPITAL/MEDICAL STAFF COMMUNICATION EFFECTIVE MARCH 31, 2011.

 

In less than 6 months, March 31, 2011 to be exact, the new Joint Commission Standard for hospital medical staff bylaws, MS 01.01.01, will be implemented. The focus of the new standard is to improve communication and coordination among a hospital’s governing body, its medical executive committee and the hospital medical staff. The Joint Commission is actively sponsoring a more collaborative relationship and more definitive accountability among the groups by requiring certain processes to be included in the medical staff bylaws, in particularly those contained in Elements of Performance 12 -36 which are mandated.

 

The standards require greater transparency in process including, among others,  the method of selection, election and removing a member of the MEC by the medical staff ( EP 21), how the medical staff can remove MEC authority (EP 20) and the process for amending medical staff rules, regulations and policies (EP 25), the inclusion of peer review processes in the bylaws (EP 30, 31), and the delineation of qualifications and specific powers and responsibilities of any medical staff department.

 

EP 11 requires a process for the resolution of conflict between the medical staff, the MEC and or the Governing Body of a hospital. The Joint Commission in adopting MS 01.01.01 recognizes that efficient and effective patient care and safety require the effective interplay between these constituent entities within the hospital and that there must be some reasonable process to stimulate communication, allocate responsibility and overcome dysfunctional behavior in the management of hospitals. SEE www.jointcommission.org.

 

THE PROMISE AND PERIL OF EVIDENCE BASED CLINICAL STANDARDS.

 

A key component of the governments efforts to bend the cost curve for health care is the use of technology and new health delivery structures to introduce “evidence based” clinical standards for the treatment of patients.  Technology will be useful in determining the most clinical effective modalities of treatment and in monitoring the implementation of the guidelines across the spectrum of health car providers. It is an idea that on the surface makes a great deal of sense.  Providers should be held accountable to implement those methods of treatment that have shown themselves to be the most effective and cost efficient in the treatment of chronic disease disease syndromes.

 

HOSPITAL PRIVACY BREACH -- DELIVERY OF MEDICAL RECORDS TO GRAND JURY.

 In responding to government or grand jury subpoenas for medical records, analysis under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), may not be the end of the road. HIPAA specifically authorizes a hospital to release a patient’s medical records in response to a grand jury subpoena. 45 C.F.R. Sec. 164.512(f)(1)(ii)(B). Unlike most federal statutes that pre-empt conflicting state laws, HIPAA specifically permits more stringent state medical privacy laws to pre-empt HIPAA. In the recent case of Turk v. Brian Oiler, et al., in the U.S. District Court for the Northern District of Ohio, a U.S. District Judge held that Ohio’s physician-patient privilege did not permit delivery of medical records to a grand jury and thus preempted HIPAA and exposed the Cleveland Clinic to potential exposure for delivery of the mental health and substance abuse records of the plaintiff James Turk to a state grand jury. 

Transplant Follies: Live Liver Lie Leads To Surgeon Indictment

It is a felony to lie to a federal government official concerning an administrative matter or process within his or her jurisdiction. Dr. Richard R.Lopez, M.D., 54, the former head of the liver transplant program at St. Vincent’s Medical Center in Los Angeles, CA was the recipient of a grand jury indictment this month for lying about and falsifying records concerning a liver transplant to federal transplant officials.  The lie was essentially to deceive the identity of the actual recipient of the liver. 

COMPLIANCE CODE OF CONDUCT – CONTEXT OR PRETEXT

 In Mark Thompson v. Quorum Health Resources, Inc., 1:06-cv-001658, (W.D.Kentucky, Bowling Green Div , Dec. 7, 2009), the U.S. District Court rejected the Defendant Quorum’s motion for summary judgment in a retaliation action brought by a former Quorum hospital CEO, who claimed that Quorum terminated him in retaliation for his filing an earlier Qui Tam lawsuit against Quorum. Qui Tam suits are “private attorney general” cases brought to collect funds under the federal False Claims Act for fraud against the federal government.. In the Qui Tam case, Mr. Thompson asserted that Quorum fraudulently selected a Group Purchasing Organization for its hospitals which benefited Quorum to the detriment t of individual hospitals.  That case was dismissed with prejudice.