Holland & Hart Healthcare Law Blog

HCQIA IMMUNITY CAN APPLY TO PEER REVIEW OF PRIVATE PHYSICIAN CONDUCT.

In the recent case of Moore,, MD v. Williamsburg Regional Hospital et al., No. 07-1966 (4th Cir. 2009), a federal court of appeals addressed the issue of how far a hospital peer review can go in considering the private conduct of a physician in suspending his or her hospital privileges.  The physician, Dr. Moore is a general surgeon who performs surgery on both adults and children in his practice.  Dr. Moore’s private left spilled over into his professional life in a tragic and unresolved way. 

Getting Out of the National Practitioner Data Bank - Part II

Getting out of the NPDB is perhaps equivalent to escaping from Alcatraz – a near impossible feat. Yet there are those who have accomplished it. The easiest way of course is to convince the hospital or other reporting entity that the report was improvidently submitted and that it should be retracted and withdrawn as they are able to do. The other option is to convince the Secretary of HHS that based on the administrative record, the submission was in error and not reportable under the criteria for reporting set out in the NPDB Guidebook. If the Secretary persists in affirming the appropriateness of the report, the only remaining recourse is the filing of a judicial review action in a federal court under the federal Administrative Procedure Act, 5 U.S.C. §701 et seq., where you must establish that the decision by the Secretary was "arbitrary and capricious." One of the most contentions areas of data bank reporting is the obligation to report a physician who resigns or withdraws an application for privileges in order to avoid a peer review "investigation" or discipline. Two successful judicial review cases in which doctors have "escaped" from the NPDB are instructive.

15 Ways to Eliminate “Trust”In Health Care Organizations.

Trust" can be defined as confidence in the integrity, ability, character and truth of a person or thing. It is a dangerous commodity in a health care setting. Remember as the poet said,

As contagion of sickness makes sickness, contagion of trust makes trust.

Marianne Moore, In Distrust of Merits (1941) Trust is a frightful tool in the hands of the wrong party bent on influencing events.

A small dust of earth that walks so arrogantly, trust begets power and faith is an affectionate thing.

Id

. Trust can be contained and even eliminated in any labor intensive organization by following a few simple rules. Here they are:

1. Keep your focus on your self interest rather than diluting it upon your organization and its members. There can be only one number one.

2. Always claim every success whether it belongs to you or not. Everybody loves a winner.

3. Chase the short-term goals that generate immediate returns. After all, you may not be here tomorrow and that might be a good thing.

4. Promise them anything whether you can deliver or not. Memories are short and it’s impolite to say no.

5. Maintain a firm hand in command and control. Everybody needs to know who is in charge of their future and fate.

6. Accept no responsibility for failure. Nobody likes a loser. Make sure that it is adequately punished to stomp out unnecessary risk.

7. Carefully limit the authority of those around you so that they know that they must respond to the strings that you pull.

8. Divide and conquer by identifying and rewarding your favorite people. Loyalty must have its perquisites and to the victor belong the spoils.

9. Punish those that demonstrate free thinking and independence. They need to get on the same page as the rest of the team. That kind of conduct can be disruptive.

10. Keep hidden agendas hidden until you need them. Transparency gets in the way of political pragmatism.

11. Announce principles and values for others to follow but provide yourself dispensation because after all you are in charge or on your way up.

12. Ignore or minimize the contributions of the "others" so that they do not get a leg up on "us." Make sure you can identify "them" that are opprosed to "us" so that we can over time squeeze them out of the organization.

13. Keep people on their toes by keeping organizational goals fuzzy and constantly changing, making it more difficult to focus responsibility. You can’t be a target if you are not responsible and your contribution is not measurable.

14. Reaching consensus is a waste of time. Tell people where the organization is going and brook no dissent. Get on the bus or off the boat.

15. Reward mediocrity because it is non-threatening and comfortable. Tie others to failures and punish them quickly to minimize the damage.

Following these prescriptions you will find an effective antidote to the menace of trust in your health care organization. Good luck and God speed.

Appeals Court Reverses Poliner Judgment

The Fifth Circuit Court of Appeals has reversed the $33 Million Dollar Judgment awarded the plaintiff in Poliner v. Texas Health Systems. The Poliner case raised a lot of eyebrows both because of the amount of the original damages award of $360 Million Dollars and its success in overcoming immunity claims under the Health Care Quality Improvement Act of 1986 ("HCQIA"). The trial court reduced the award to $33 Million Dollars prior to the appeal.   Dr. Poliner, an interventional cardiologist, claimed that he was forced to agree to an abeyance of his privileges in lieu of a summary suspension and was prevented from performing procedures in the the defendant's catherization laboratory while an investigation was pending, only posted about $10,000 dollars in actual damages. His case went to a jury solely on defamation grounds.

MONTANA COURT MUZZLES BARKING RADIOLOGIST

In St. James Healthcare v. Cole, Mont., No. DA 07-0084, 2/12/08. the Montana Supreme Court upheld an injunction that  St. James Healthcare obtained against its former exclusive contractor for radiologist services., Dr. Jesse A. Cole. Dr. Cole allegedly made harassing and threatening phone calls to a radiologist a Boston University Medical Center in Massachusetts who obtained the radiology contract after Dr. Cole was dispatched by St. James. Dr. Cole sent emails and phone calls to his replacement warning her of a “predatory situation” and that “bad things can happen to you.”  The Court concluded that an injunction that proscribed speech and conduct that was intended to embarrass, harass or threaten was not protected by the First Amendment to the Constitution and therefore the injunction and restraining order imposed on Dr. Cole was not an illegal prior restraint. Dr. Cole, is a fan of the Second Amendment to the Constitution as well. He maintains two 64 gun vaults, which seems to have generated some considerable concern about the potential of his going “postal.” Other radiologists testified in court about a concern s over threatening interactions with Dr. Cole in the past. Erratic behavior and large gun vaults do tend to focus the mind.

Physician Recruitment Mutual Mistake

This is an extension to our previous post on Physician Recruitment Fraud (January 24, 2007).  There is more and more litigation surfacing between hospitals and recruited physicians when hospitals lure physicians into a new startup practice in their market and the physician is unable to sustain a viable practice in the new community.  The physician is forced to move on to earn a livelihood and the hospital for regulatory reasons feels it is obligated to enforce its contractual obligation with the physician for the repayment of the money if the physician leaves before the forgiveness period (typically 3 years). The physician did not sign on for serving in an Americorp or Peace corps lifestyle and raises a number of defenses including fraud in the inducement and mutual mistake.

Physician Recruitment Fraud

There appears to be a growing trend toward the fraudulent inducement by some hospitals of physicians to relocate their practices and move to a new hospital cachement area based upon false representations as to the assistance the hospital can or will provide to establish the physician in the community, the "pent up need" for the physician's services in the community and the existence of a favorable payer mix in the community.  Many of these representations are made by head hunters out to score a "head" at all costs.  A physician with a useful specialty for the hospital moves or starts his or her practice in the community and frequently finds that he or she is treated pretty much an employee without the security of a salary.  The hospitals use the inducement of an "income guarantee" for the first year to help jump start the practice.  The income support usually runs for a year and then disappears.  The amount advanced in the first year is then converted into a loan with the balance to be forgiven over the next three years if the physician continues to practice in the community.

LOOSE LIPS IN OR: PENNSYLVANIA FEDERAL DISTRICT COURT PERMITS DEFAMATION SUIT AGAINST TELLAR SURGEON TO PROCEED.

A Federal District Court for the Middle District of Pennsylvania dismissed multiple claims against Pinnacle Health Hospitals, Inc. (“Pinnacle”) and a number of physicians which arose out of the peer review of Dr. Ayadeji O. Bakare, M.D., but permitted a defamation action against Dr. Barry B. Moore, M.D. and his employer, Pinnacle to proceed.

In Bakare, M.D. v. Pinnacle Health Hospitals, Inc. et al., Civil Action 1:03-cv-1098 (Aug. 24, 2006), Dr. Bakare, a board certified OB/Gyn physician, sought recovery of damages based upon claims of anti-trust violations, breach of contract, interference and defamation arising out of his precautionary suspension from the Pinnacle medical staff and an adverse recommendation from the Medical Executive Committee that his medical staff privileges be revoked.  Pinnacle lifted Dr. Bakare’s suspension shortly after it was imposed following  an agreement worked out between the parties to limit the scope of Dr. Bakare’s practice pending the investigation.  The adverse recommendation as to his privileges was reinforced by an independent outside review by a physician recommended by the Academy of Obstetrics and Gynecology (“ACOG”).

New Trend In Whistleblower Retaliation - Frame Him?

Has California, the mother of many trends in the trendy business of healthcare inaugurated a new way of dealing with "obstructionist" whistleblower physicians?  Dr. Michael Fitzgibbons, a reputedly mild mannered, Clark Kentish, Republican physician in southern California was arrested in the parking lot of a Santa Ana hospital and charged with the possession with a loaded firearm, carrying a concealed weapon and brandishing a weapon. He was booked. His car was confiscated. He was strip searched and released on his own recognizance. This followed an apparently anonymous 911 tip to the Santa Ana Police Department that a person wearing black gloves and driving Dr. Fitzgibbon's brown camry, was wildly waiving a pistol while driving the car through the streets of Santa Ana.

Dr. Fitzsimmons claimed that he owned neither the gun nor the black gloves found in his car by the police was  framed by someone upset with his opposition to the owner of Western Medical Center, Integrated Healthcare Holdings, Inc. ("IHHI"). The Orange County District Attorney's Office declined to prosecute the case because of a lack of evidence. They had the defendant, the car, the gun, the black gun. They apparently did not have the witness.

Economic Credentialing (Part III): "Now its come to distances...."

This is the third article in a series on economic credentialing, this one focusing on the reasons for the growing impasse between hospital management and hospital medical staffs.