05/14/2024
IN THE COURTS
Plastic Surgeon Illegally Restricted Negative Reviews, Judge Rules
A plastic surgeon broke federal law when he restricted patients from posting negative reviews by requiring them to sign nondisclosure agreements before they received care, a district judge has ruled. Seattle-based surgeon Javad Sajan, MD, ran afoul of the Consumer Review Fairness Act (CRFA) by requiring more than 10,000 patients to sign the agreements, according to a recent decision by U.S. District Judge Ricardo S. Martinez. The law protects consumers’ rights to post truthful reviews about businesses.
Judge Martinez wrote that the terms of Dr. Sajan’s nondisclosure agreements “clearly include language prohibiting or restricting patients from posting negative reviews,” in violation of CRFA. Penalties for the offense will be determined at a September trial.
Source: Alicia Gallegos, MD Edge [5/9/24]
01/25/2024
IN THE COURTS
PA Podiatrist Tenders His $1M Med Mal Policy After Lying About Credentials
It only took one day of trial and one witness for defendants in a Lehigh County medical malpractice suit to settle with plaintiffs for their $1 million policy limit. According to the plaintiff’s lawyer, counsel for defendant Dr. Brad Lilly agreed to resolve the suit the morning after the plaintiffs made a dramatic reveal: Lilly had lied about his credentials.
Lilly had represented on his website and CV that he was a fellow of the American College of Foot and Ankle Surgeons (ACFAS). When ACFAS was contacted, they confirmed that Lilly had not been involved with the organization since he was a student member and never became a fellow.
Source: Aleeza Furman, The Legal Intelligencer [1/23/24]
01/12/2024
IN THE COURTS
Fired Podiatrist’s Age Bias Allegations Fail in Rusty Instrument Suit
A former podiatrist fired after a superior found rusty instruments in her workspace failed to establish the City of Newark actually fired her because of her age, a federal judge said. Patricia W. Bennett, DPM worked as a part-time podiatrist for Newark for more than three years before her 2018 firing,
The ex-foot doctor, who was in her 60s when she lost her job with the city’s health department, didn’t point to any facts showing her termination was more likely than not based on impermissible factors such as age, the U.S. District Court for the District of New Jersey said Tuesday. The City presented rusty instruments as legitimate firing reason.
Source: Jennifer Bennett, Bloomberg Law [1/10/24]
12/22/2023
RESPONSES/COMMENTS (IN THE COURTS)
From: Paul Kesselman, DPM
This news bulletin from Becker's Payer Issues provides a very rationale reason for doctors to fear these replacement plans. Their advertising on TV and Radio during open enrollment should be even further restricted and is downright disgustingly misleading. The audience is told what they want to hear (how they can save money) but is never told at what cost.
The physicians and hospitals need to have the gumption to simply say NO! We are not going to take in anymore! If you have no respect for yourself, continue to take contracts which are 50% or less of Medicare. If not, then stand up and say no, you're not going to tolerate being abused and taken advantage of. If you don't stand up for yourself, who will?
Paul Kesselman, DPM, Oceanside, NY
12/21/2023
IN THE COURTS
Humana Used AI Tool from UnitedHealth to Deny Medicare Advantage Claims: Lawsuit
Humana used an artificial intelligence tool owned by UnitedHealth Group to wrongfully deny Medicare Advantage members' medical claims, according to a class-action complaint filed Dec. 12. The lawsuit was filed in the U.S. District Court for the Western District of Kentucky and is the latest legal action against major insurers such as UnitedHealthcare and Cigna for allegedly using automated data tools to wrongfully deny members' claims.
The complaint against Humana, the country's second-largest Medicare Advantage insurer, accuses the company of using an AI tool called nH Predict to determine how long a patient will need to remain in post-acute care and overrides physicians' determinations for the patient. The plaintiffs claim Humana set a goal to keep post-acute facility stay lengths for MA members within 1% of nH Predict's estimations. Employees who deviate from the algorithm's estimates are "disciplined and terminated, regardless of whether a patient requires more care," the lawsuit alleges. When decisions made by the algorithm are appealed, they are allegedly overturned 90% of the time.
Source: Jakob Emerson Becker's Payer Issues [12/13/23]
12/18/2023
IN THE COURTS
Geico To Settle $5.5M Complaint Against FL Podiatrist
Geico reached a settlement with a Florida podiatrist it accused of engaging in a patient brokering and kickback scheme with other physicians to channel business through his surgery center and will soon dismiss the case, the insurer has told a Florida federal court. The proposed settlement came Wednesday, three months after Geico filed its complaint against Jonathan Cutler, DPM to recover more than $5.5 million in supposedly fraudulent insurance payments the insurer made to comply with Florida's no-fault personal injury protection law.
Source: Cassie Chew, Law 360 [12/14/23]
11/10/2023
IN THE COURTS
Tennessee’s Racial Podiatry Rule
The Supreme Court’s ruling this summer in Students for Fair Admissions ended racial preferences among college applicants, but the task of extending that legal precedent for color blindness is only beginning. Medicine might be one field to watch next, since it’s a place where the use of racial selection criteria persists under state mandates. On Wednesday, a group called Do No Harm, which says it’s “dedicated to eliminating racial discrimination in healthcare,” plans to file a federal lawsuit challenging Tennessee’s rules for appointments to more than 70 state boards, according to the draft complaint.
That includes the Board of Podiatric Medical Examiners, created in 1931, whose six members are chosen by the Governor to regulate podiatry practice. Two seats on the podiatry board recently became open. When filling those seats, state law says Republican Gov. Bill Lee must “strive to ensure” that “at least one (1) person serving on the board is a member of a racial minority.” According to the lawsuit, one of the current podiatry openings “is held by the only individual who satisfies the racial mandates,” meaning Mr. Lee is now supposed to use a racial test as he considers candidates.
Source: The Editorial Board, Wall Street Journal [11/7/23]
10/13/2023
IN THE COURTS
Defense Verdict in PA Podiatrist Malpractice Suit
The case stemmed from plaintiff John Benjamin’s allegations that Dr. Spencer Monaco failed to properly treat a degenerative condition in his foot called Charcot foot. According to court papers, Monaco performed an ankle surgery in late May 2021, which required external fixation. About six weeks later, Benjamin called the hospital concerned about a possible infection where a pin was located. The fixation was removed, and records reported no signs of infection.
For months, Monaco said Benjamin was making a good recovery, however, several months later Benjamin’s leg became severely swollen, and it was determined he had a severe infection. After some efforts to drain and clean the infection, Benjamin’s leg was amputated just above the ankle. The defense lawyer said his client made an excellent witness, who was direct on the stand, and that the jury also likely believed Benjamin’s Charcot foot condition was so advanced by the time he sought Monaco’s treatment that he likely he would have needed to have undergone the amputation regardless. The jury came back with a defense verdict.
Source: Max Mitchell, The Legal Intelligencer [10/4/23]
06/12/2023
IN THE COURTS
Mississippi Hospital Settles MS Podiatrist’s Pay Equality Lawsuit
A Black doctor and the hospital he sued for paying him less than a White colleague have agreed to the dismissal of his suit. Preston Boles’ podiatry practice was bought by Greenwood Leflore Hospital in 2006, but a dispute arose after the hospital hired a White doctor to pick up Dr. Boles’ workload at significantly more pay.
The hospital lost a summary judgment in the U.S. District Court for the Northern District of Mississippi after unsuccessfully arguing that Boles’ performance was the cause of the pay disparity. A settlement was reached in February right before trial, according to a court order.
Source: Ufonobong Umanah, Bloomberg Law [6/9/23]
06/09/2023
IN THE COURTS
NY Podiatrist Prevails Against Employer in Retaliation Case
Plaintiff Sherie Neufville, DPM was employed by a health clinic, defendant Metro Community Health Centers, Inc., as a podiatrist from December 2016 until February 2022. She was fired in February 2022 while taking paid maternity leave under an employer sponsored benefit plan. In her complaint, Ms. Neufville alleges that in the fall of 2021 she formally applied for and was approved paid family leave to give birth and take care of her newborn from late November 2021 to the end of February 2022. The defendant failed to show and a default judgment was issued.
She maintains that her employer discharged her for retaliatory reasons to interfere with her attempt to exercise her rights under her ERISA plan. Accordingly, in this lawsuit Dr. Neufville asserted one cause of action, a violation of Section 510 of ERISA. The court did not award damages in this order. Instead, it ordered Dr. Neufville to file supplemental materials clarifying the amount in damages she was seeking and the basis for the requested award amount.
Source: Lexblog [6/7/23]
02/21/2023
IN THE COURTS
Medical Malpractice Lawsuit Over Cartiva Toe Implant Surgery Allowed to Proceed
A Michigan appeals court has cleared the way for a medical malpractice lawsuit to move forward over complications following Cartiva toe implant surgery, involving allegations that a doctor used the device even though it was medically inappropriate for the plaintiff.
The complaint was originally filed by Eugene Perez in December 2019, involving claims against Dr. Joshua Faley, Michigan Foot and Ankle, P.C., William Beaumont Hospital, and Drs. Daniel Peterson and Jacob Meisenburg, indicating that the medical providers breached the standard of care by recommending a Cartiva implant to treat his big toe pain, since the device was just recently introduced in the United States and featured a flawed design, which was not appropriate treatment for his condition, known as hallux rigidus.
Source: Irvin Jackson, aboutlawsuits.com [2/14/23]
02/15/2023
IN THE COURTS
MS Podiatrist Settles Suit Against GLH
A Greenwood podiatrist has settled his racial discrimination lawsuit against Greenwood Leflore Hospital (GLH). The settlement was first reported by The Taxpayers Channel, but the terms of the settlement were unknown. On Monday, the Greenwood hospital declined to comment, and Dr. Preston Boles, the plaintiff in the lawsuit, did not return a message left for him at his office.
Source: Tim Kalich, The Greenwood Commonwealth [2/14/23]
01/03/2023
IN THE COURTS
MS Hospital to Face Black Podiatrist’s Bias Claims at Trial
A jury must decide whether a Mississippi hospital paid a Black doctor less than a White doctor because of his race, or due to differences in their productivity. Preston Boles sufficiently discredited Greenwood Leflore Hospital’s argument that his rate for work exceeding his contract minimum was lower than his White colleague’s because the White doctor was more productive, the U.S. District Court for the Northern District of Mississippi ruled Tuesday.
Boles worked as a podiatrist at Greenwood and received a base salary of $215,000 in 2019, while fellow podiatrist Joseph Assini received $250,000. Dr. Assini received $52 per RVU worked for every year he was employed at the hospital, while Dr. Boles received between $44 and $45 per RVU from 2013-19, the lawsuit alleges.
Source: Annelise Gilbert, Bloomberg [12/28/22]
09/21/2022
IN THE COURTS
DOJ Joins Lawsuit Alleging Kickbacks and Fraud Against Arizona Medical Clinics
A national chain of vascular clinics based in the Phoenix area was accused in a federal civil complaint of paying illegal kickbacks and performing unnecessary medical procedures. In court documents unsealed by a judge Friday, two outside doctors made claims against Modern Vascular and its constellation of related entities. Among them was that Modern Vascular founder and board chairman Yury Gampel pressured doctors at the clinics to “perform invasive procedures on as many referred patients as possible,” and that Gampel ensured the clinics treated patients “according to the procedures that received the highest Medicare reimbursement,” without regard to medical necessity, charging as much as $17,000 to $30,000 per procedure.
The complaint against Gampel focuses in part on claims about his actions when opening a Modern Vascular clinic in San Antonio in 2019. It says he held a conference call that included 16 podiatrists in the area and explained the terms, promising the investment was legal and $15,000 would turn into more than $1 million in less than five years.
Source: Andrew Ford, Arizona Republic [9/17/22] via Dr. Allen Jacobs
09/19/2022
IN THE COURTS
PA Podiatrist Beats Defective Foot Surgery Case
A Pennsylvania federal jury has cleared a podiatrist of liability in a malpractice suit filed by a New Jersey woman accusing him of negligently performing procedures that she says injured her foot. The jury handed down its verdict in favor of Dr. Ira Silverman in plaintiff Maritza Ortiz's case on Wednesday in U.S. District Judge Timothy Savage's Philadelphia courtroom. Ortiz had demanded damages in excess of $150,000 for what she claimed was negligent treatment to correct a bunion and hammertoe on her right foot that was causing her to walk with an "altered gait," according to her complaint, filed in September 2021.
In court papers, Silverman maintained Ortiz was aware of the risks. He also said that Ortiz admitted to suffering from gait dysfunction before the surgery and that she did not follow his recommendation to wear custom orthotics. Silverman also countered that post-operative pain Ortiz suffered was likely due to her fibromyalgia and was not linked to the surgery. Additionally, Silverman said Ortiz has fully recovered from the surgery and her day-to-day life had not been disrupted.
Source: P.J. D'Annunzio, Law360 [9/15/22]
09/15/2022
IN THE COURTS
AMA, 2 State Medical Societies Join Class-Action Suit Against Cigna
The American Medical Association (AMA) has joined a class-action lawsuit against Cigna, alleging the insurer underpaid for claims filed by providers in the contracted MultiPlan network. MultiPlan is the country's largest third-party network, and Cigna contracts with it to access providers. According to the lawsuit, which was initially filed in June, Cigna reimbursed for claims from providers in MultiPlan's network at its non-participating providers rate rather than at the rate expected for a MultiPlan contract.
As such, the insurer "significantly underpaid claims, and put patients at risk of balance billing," the plaintiffs claim. "It also breached its fiduciary duties, including its duty to honor written plan terms and its duty of loyalty, because its conduct serves Cigna’s own economic self-interest and elevates Cigna’s interests above the interests of plan member patients," according to the lawsuit.
Paige Minemyer, Fierce Healthcare [9/13/22]
09/06/2022
IN THE COURTS
Court Says Local Health Centers Can Challenge AHCCCS on Reimbursements
A federal appeals court Friday ordered a new hearing for Arizona community health care centers that claim the state’s Medicaid system is wrongly denying reimbursement for chiropractic, dental, optometric, and podiatric care. A three-judge panel of the 9th U.S. Circuit Court of Appeals reversed a lower court decision that dismissed the Arizona Alliance for Community Health Centers’ suit against the Arizona Health Care Cost Containment System (AHCCCS), the state’s Medicaid provider.
In his opinion, Circuit Judge Richard R. Clifton praised the district court judge and the attorneys on both sides “for their skillful handling of the uncommonly complex issues presented by this case.” But he said the decision to dismiss the case was wrong and ordered the case back to the district court for a new hearing. While the Supreme Court “has long held that ‘nothing in the (Medicaid) statute suggests that participating states are required to fund every medical procedure'” included in the mandated categories, CMS has to justify the reason for the decision to exclude coverage. Clifton said it had not.
Source: Ryan Knappenberger, Cronkite News [9/3/22]
09/02/2022
IN THE COURTS
Appeals Court Strikes Down Bid to Reinstate OSHA COVID-19 Protection Standard
The U.S. Court of Appeals for the District of Columbia ruled Friday that it did not have the power to overturn the Occupational Safety and Health Administration’s (OSHA's) decision to scrap a temporary protection standard that outlined requirements for hospitals to keep front-line health workers safe from contracting COVID-19. The union National Nurses United decried the decision.
OSHA issued a temporary protection standard for COVID-19 back in June 2021. However, OSHA did not move to make a permanent standard before the temporary one expired last year, as the agency shifted resources toward a vaccine mandate, the appellate opinion said. OSHA had called for health systems to still impose the standard’s requirements voluntarily.
Source: Robert King, Fierce Healthcare [8/30/22]
08/30/2022
IN THE COURTS
SCOTUS Ruled on Opioid Prescriptions: Here’s What You Need to Know
The Supreme Court of the United States (SCOTUS) has ruled that doctors must show intent to mis-prescribe opioids in order to face criminal charges.
Despite the drop in opioid prescriptions in recent years, opioid overdoses and deaths are on the rise, largely because of street drugs.
The CDC’s position is that physicians can better serve patients by focusing on when to initiate and continue opioid treatment, what type and dosage of opioid to use, and how to address risk of drug abuse when prescribing opioids.
Source: Jules Murtha, MD Linx [8/26/22]
08/11/2022
IN THE COURTS
FL Podiatrist Sues Defendants for Misappropriating Funds, Intellectual Property
Jaws Podiatry, Inc., has filed suit in the Southern District of Florida against individual defendants and A&D Creative Marketing LLC. The complaint for injunctive and monetary relief alleges that the defendants unfairly took funds and trade secrets from the plaintiff.
Plaintiff Abraham Wagner, who the complaint says owns Jaws Podiatry, has a unique method for performing minimally invasive and aesthetic foot surgical procedures under local anesthesia, which they have worked to maintain the secrecy of through protected surgeries, photographs, videos, and more. Luxe Foot Surgery, who is a direct competitor of the plaintiff, allegedly worked with the other defendants to steal the medical procedure videos and begin using the plaintiff’s techniques.
Source: Kendall Heebink, Law Street Media [8/8/22]
08/10/2022
IN THE COURTS
Minority Shareholders can “Follow the Money” Linked To Alleged Diversions by Majority for Phantom Salaries and Benefits
The minority shareholders of a podiatry practice felt like they had been kicked around by the alleged financial misadventures of two colleagues who together controlled an 80 percent interest. A four-way split of practice expenses was particularly galling to the minority, based on their allegations that practice “expenses” included robust salaries and benefits afforded to family members of the majority shareholders who didn’t work for the practice, and Carolina Hurricanes season tickets reserved for personal use. Plaintiffs Joel Kelly and Elizabeth Bass Daughtry each held ten percent interests in Piedmont Foot Clinic, P.A., and defendants Jason Nolan and Richard Hauser each held 40 percent shares. Piedmont was sold in 2020 to a group of entities that operate a multi-state business.
While the Court acknowledged the general rule that shareholders don’t owe a fiduciary duty to one another, Judge Davis found that Nolan and Hauser owed the minority shareholders a “special duty” that North Carolina requires majority shareholders in a close corporation to afford to minority holders. The Court noted that North Carolina law also allows minority shareholders to pursue asset diversion claims in settings, like here, where more than one shareholder is alleged to have acted together to exercise control to the detriment of minority interests.
Source: Bradley M. Risinger, Lexblog [8/7/22]
06/25/2022
IN THE COURTS
Supreme Court Rebuffs UnitedHealth Group Challenge on Medicare Overpayments
The U.S. Supreme Court on Tuesday declined to hear UnitedHealth Group Inc.'s challenge to a government rule requiring private insurers that administer federally funded Medicare plans to return potentially billions of dollars in overpayments they receive based on incorrect diagnoses. Turning away the Minnetonka, Minnesota-based insurer's appeal, the justices left in place a lower court's decision reviving the rule after a federal judge had previously struck it down.
The 2014 rule applies to so-called Medicare Advantage insurance plans, which are funded through the U.S. Department of Health and Human Services (HHS) but administered by private insurers like UnitedHealth. HHS pays Medicare Advantage plans a base amount per beneficiary, adjusted according to diagnostic codes reflecting each beneficiary's individual risk factors. Under the rule, if a Medicare Advantage insurer learns that it received a payment based on an unsupported diagnosis, it must return that payment within 60 days. According to a 2016 federal audit, the government paid out about $16.2 billion that year based on unsupported diagnoses, nearly 10% of the total paid to Medicare Advantage insurers.
Source: MDLinx via Reuters Health Medical News via Dr. Phil Obiedzinski [6/22/22]
05/23/2022
IN THE COURTS
NJ Circuit Court Won't Revive Blind NJ Podiatrist's Bias Claims
The Third Circuit won't give a blind podiatrist another shot at his claims that he was the victim of discrimination after he was removed from a list of referring physicians participating in New Jersey's medical marijuana program, the federal appeals court said Wednesday. In a brief per curiam opinion, a three-judge panel noted that "by his own admission," plaintiff Dr. Darren James, who claims that he was unfairly booted from the program in 2017, is "a podiatrist —a DPM — and not a medical doctor (MD)."
"The fact that he previously was able to register online for the MMP as a 'medical doctor', even though he was not one, did not somehow confer qualified status under the program," the circuit court told James, who is by his own description "totally blind" and brought claims under the Americans With Disabilities Act, the Rehabilitation Act, and the New Jersey Law Against Discrimination, among other statutes.
Source: Emilie Ruscoe, Law 360 [5/18/22]
03/31/2022
IN THE COURTS
NY Podiatry Practice Beats Whistleblower’s Fraud Claims
A Batavia, NY-based podiatry practice beat False Claims Act allegations that it sought payments from Medicare and Medicaid despite noncompliance with medication safety standards, a New York district court said. George R. Vito, a podiatrist who formerly worked at Advanced Podiatry Associates, didn’t identify any particular false claims that were submitted to the government, and didn’t allege facts suggesting that alleged schemes resulted in the submission of false claims, Judge Lawrence J. Vilardo of the U.S. District Court for the Western District of New York said in a Tuesday opinion.
The court also said Vito failed to adequately raise an FCA retaliation claim because he didn’t allege he was terminated because of complaints about allegedly improper medication use. Instead, Vito claimed he was fired for objecting to podiatrist owner Joseph Canzoneri’s alleged request that Vito pay $250 per surgical procedure, the court said. Vito has 30 days to correct deficiencies in an amended complaint, the court said.
Source: Daniel Seiden, Bloomberg Law [3/23/22]
03/10/2022
IN THE COURTS
AR Podiatrist is Plaintiff in Racial Gerrymandering Lawsuit
A federal lawsuit was filed today challenging the legislature’s redrawing of Congressional districts to reflect the 2020 Census. The plaintiffs, all from Pulaski County, include Anika Whitfield, DPM. In the case of Dr. Whitfield, the suit notes she’s a podiatrist, an ordained Baptist minister, and co-chair of Grassroots Arkansas and the Arkansas Poor People’s Campaign and other organizations spread among three districts.
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Dr. Anika Whitfield |
According to the lawsuit, the strength of Dr. Whitfield and her organizations’ influence on federal policies has been purposefully muted by the removal of a large segment of the community to districts and populations that are different geographically and socially.
Source: Max Branley, Arkansas Times [3/7/22]
