Justia Professional Malpractice & Ethics Opinion Summaries

A former small-town doctor, defendant Joel Miller, was charged with multiple counts of health-care fraud, money laundering, and distributing a controlled substance outside the usual course of professional treatment, as well as one count of making a false statement on an application submitted to the Drug Enforcement Administration. A jury acquitted him on all of the financial charges as well as several of the drug distribution charges, but found him guilty on seven counts of distributing a controlled substance, and one count of making a false statement to the DEA. The district court granted Defendant’s post-judgment motion for acquittal on one of the controlled-substances counts based on an error in the indictment. The court then sentenced him to forty-one months of imprisonment on the six remaining distribution counts, plus a consecutive sentence of nineteen months on the false-statement count, for a total sentence of sixty months of imprisonment. Defendant appealed his convictions and sentence. The Tenth Circuit found no error in the imposition of defendant’s sentence on the six distribution counts; however the Court reversed and remanded on the false statement count. The Court was persuaded that trial court proceedings “broadened the possible bases for conviction beyond those found in the operative charging document. …we are persuaded that the trial proceedings in this case effected a constructive amendment.” View "United States v. Miller" on Justia Law

In consolidated appeals, an executor of an estate sued the clinic and physician's assistant who treated the decedent for wrongful death. The trial court dismissed the case because plaintiff failed to file a certificate of merit, as was required by statute. The refiled case was dismissed as untimely. The executor appealed to the Vermont Supreme Court, which reviewed the trial court's dismissals and found that dismissal was proper in both cases. View "Quinlan v. Five-Town Health Alliance, Inc., dba Mountain Health Center" on Justia Law

For several weeks, Redman posed as a psychiatrist at a Chicago medical clinic using the name and license number of Dr. Garcia. He “treated” patients for mental illnesses, and “prescribed” controlled substances. Redman actually did not attend school past the tenth grade. Before commencing employment, Redman provided falsified documentation: an employment application, payroll application, I‐9 Employment Eligibility Verification form, W‐9 form, photograph of an Indiana driver’s license with Redman’s picture, photocopy of an Illinois medical license, photocopy of a medical school diploma, a residency certificate for training in psychiatry, and a photocopy of a social security card. He used online counterfeiting services; he submitted an online Drug Enforcement Administration application and obtained malpractice insurance using false information. He was discovered when the real Dr. Garcia learned that someone had used his medical license number to obtain a DEA registration. A jury found Redman guilty of wire fraud, aggravated identity theft, furnishing false and fraudulent material information in documents required under the federal drug laws, and distributing controlled substances. The Seventh Circuit affirmed his 157-month sentence, upholding the application of two-level enhancements for use of sophisticated means and for conduct that involved a conscious or reckless disregard of a risk of death or serious bodily injury. View "United States v. Redman" on Justia Law

The Board of Directors (the Board) of Bear Valley Community Hospital (Bear Valley) refused to promote Dr. Robert O. Powell from provisional to active staff membership and reappointment to Bear Valley's medical staff. Dr. Powell appealed the superior court judgment denying his petition for writ of mandate to void the Board's decision and for reinstatement of his medical staff privileges. Dr. Powell practiced medicine in both Texas and California as a general surgeon. In 2000, the medical executive committee of Brownwood Regional Medical Center (Brownwood), in Texas, found that Dr. Powell failed to advise a young boy's parents that he severed the boy's vas deferens during a hernia procedure or of the ensuing implications. Further, the committee found that Dr. Powell falsely represented to Brownwood's medical staff, on at least two occasions, that he fully disclosed the circumstances to the parents, behavior which the committee considered to be dishonest, obstructive, and which prevented appropriate follow-up care. Based on the committee's findings, Brownwood terminated Dr. Powell's staff membership and clinical privileges. In subsequent years, Dr. Powell obtained staff privileges at other medical facilities. In October 2011, Dr. Powell applied for appointment to the medical staff at Bear Valley. On his initial application form, Dr. Powell was given an opportunity to disclose whether his clinical privileges had ever been revoked by any medical facility. In administrative hearings generated by the Bear Valley Board’s decision, there was a revelation that Dr. Powell had not been completely forthcoming about the Brownwood termination, and alleged the doctor mislead the judicial review committee (“JRC”) about the circumstances leading to that termination. Under Bear Valley's bylaws, Dr. Powell had the right to an administrative appeal of the JRC's decision; he chose, however, to bypass an administrative appeal and directly petition the superior court for a writ of mandamus. In superior court, Dr. Powell filed a petition for writ of mandate under Code of Civil Procedure sections 1094.5 and 1094.6, seeking to void the JRC's/Board's decision and to have his medical privileges reinstated. The trial court denied the petition, and this appeal followed. On appeal of the superior court’s denial, Dr. Powell argued he was entitled to a hearing before the lapse of his provisional staff privileges: that the Board surreptitiously terminated his staff privileges, presumably for a medical disciplinary cause, by allowing his privileges to lapse and failing to act. The Court of Appeal determined the Bear Valley Board had little to no insight into the true circumstances of Dr. Powell’s termination at Brownwood or the extent of his misrepresentations, thus the Board properly exercised independent judgment based on the information presented. In summary, the Court of Appeal concluded Bear Valley provided Dr. Powell a fair procedure in denying his request for active staff privileges and reappointment to the medical staff. View "Powell v. Bear Valley Community Hospital" on Justia Law

Harold Persaud, M.D., a cardiologist in private practice, was charged with one count of health-care fraud, 18 U.S.C. 1347, 14 counts of making false statements relating to health-care matters, 18 U.S.C. 1035, and one count of money laundering, 18 U.S.C. 1957. The grand jury also returned a forfeiture finding, requiring Persaud to forfeit all property linked to the charges, including $343,634.671 seized from bank accounts associated with Persaud and his wife. At trial, the government presented 34 witnesses, including 11 physicians, eight patients, and four nurses. The defense relied on five witnesses, including an expert cardiologist, two referring physicians, and a coding expert. The jury convicted Persaud on all charges, except for one false-statement count. The jury concluded that the $343,634.67 seized from the Persauds’ bank accounts was forfeitable; the $250,188.42 seized from Persaud’s wife’s account was related to his money-laundering conviction; and Persaud’s scheme generated gross proceeds of $2,100,000. The district court sentenced Persaud to 20 years of imprisonment, a $1,500 special assessment, and restitution of $5,486,857.03, which consists of money damages to be paid to Persaud’s patients, their private insurers, and the government. The Sixth Circuit affirmed. The jury was entitled to accept the view of the government’s experts over those of Persaud’s experts. View "United States v. Persaud" on Justia Law

Providence Alaska Medical Center terminated Dr. Michael Brandner’s hospital privileges without an opportunity to be heard after determining he had violated hospital policy by failing to report an Alaska State Medical Board order requiring him to undergo an evaluation of his fitness to practice medicine. Brandner unsuccessfully challenged this action through the hospital's hearing and appeal procedures. Brandner thereafter took his cause to court, seeking reinstatement and damages for the alleged due process violations both in the procedures used and in the substantive standard applied in his termination. The superior court found no such violations and that he was not entitled to reinstatement. Brandner appealed. The Alaska Supreme Court affirmed in part and reversed in part, finding that Brandner was not entitled to reinstatement or post-termination-hearing damages. However, the doctor's due process rights were violated when he was not given a hearing following termination of his hospital privileges. The matter was remanded for further proceedings. View "Brandner v. Providence Health & Services" on Justia Law

McNair obtained a commercial driver’s license (CDL) in 2000 and began driving. McNair has a history of diabetes and cognitive deficits. While under the care of Department of Public Health (DPH) physicians, McNair signed forms, stating that his medical records would not be released without his written authorization, absent an articulated exception. One exception applied if the DPH was “permitted or required by law” to release the information. In 2002, Dr. Pope advised “serious caution" in recommending that the CDL be renewed. In 2004. Dr. Kim refused to certify McNair for a CDL. None of the other physicians would agree to certify him. Dr. Kim wrote a letter to support McNair's application for SSI disability benefits, stating her opinion,that he was not able to hold down any type of full-time employment. Later, Alameda County Transit hired McNair as a bus operator. After learning of his job and that McNair had applied for a certificate to drive school busses, Kim contacted the DMV. McNair’s CDL was temporarily revoked. He lost his job. McNair filed suit alleging breach of his medical privacy rights. The court of appeal affirmed summary adjudication, finding his intentional tort and breach of contract claims barred by the litigation privilege, Civil Code 47(b); both claims were based solely on the propriety of Kim‟s letter to the DMV. View "McNair v. City and County of San Francisco" on Justia Law

During 2012-2013, three undercover DEA agents posed as patients during an investigation into Dr. Zaidi’s controlled substances prescription practices. As a result, the DEA Deputy Administrator suspended Zaidi’s controlled substances prescription privileges, finding that his continued registration posed an imminent danger to the public health and safety, 21 U.S.C. 824(d). DEA agents also seized controlled substances from Zaidi’s offices. Following a hearing, an ALJ recommended that the suspension and seizure be affirmed and that Zaidi's registration be revoked. The Administrator affirmed the suspension and seizure, but found the registration issue was moot due to the expiration of Zaidi’s registration and his decision not to seek renewal. The Sixth Circuit affirmed, rejecting arguments that the ALJ arbitrarily and capriciously denied Zaidi the opportunity to present testimony from an expert, employees, and former patients; there was insufficient evidence to support the suspension; the government failed to make a prima facie showing that Zaidi’s continued registration was inconsistent with the public interest; Zaidi’ prescriptions to the three undercover officers were not outside the usual course of professional practice and did not lack a legitimate medical purpose; Zaidi did not falsify medical records; and the sanction imposed was disproportionately harsh. View "Akhtar-Zaidi v. Drug Enforcement Administration" on Justia Law

Means, 18 weeks pregnant, went into labor. She went to Mercy Health, the only hospital within 30 minutes of her residence. Doctors diagnosed preterm premature rupture of the membrane, which usually results in a stillbirth or the baby's death. Means’s unborn baby still had a heartbeat. Mercy sent her home with pain medication without telling Means that the baby would likely not survive or that continuing her pregnancy could endanger her health. The next morning, Means returned with a fever, excruciating pain, and bleeding. Mercy did not give her additional treatment or options, although Means’s physician suspected she had a serious bacterial infection. Mercy sent her home. Means returned that night with contractions. The baby was delivered and died. The pathology report confirmed that Means had acute bacterial infections. Two years later, a public health educator discovered and inquired into Means’s case. Mercy explained that its Directives (ethical guidelines dictated by Catholic doctrine) prohibited inducing labor or similar action. The limitations period had run out on medical malpractice claims. Means sued the Conference of Catholic Bishops, alleging negligence for promulgating and enforcing the Directives. The Sixth Circuit affirmed dismissal. The only link to the Eastern District, where the case was filed, was the decision of Catholic Health Ministries to adopt the Directives. Each individual defendant lives out of state. Means lives in and Mercy is located in the Western District. Means did not allege that the defendants, by adopting the Directives, caused her any cognizable injury.. View "Means v. United States Conference of Catholic Bishops" on Justia Law

Robert Mena was licensed to practice medicine and surgery in Idaho in 2003. In 2007, staff members at the hospital in Jerome where he had privileges reported behaviors that suggested to them that Dr. Mena might have been abusing drugs or alcohol. Dr. Mena was evaluated and tested negative for chemical dependency. But staff, still concerned about Dr. Mena's psychological status, opined that he was not then currently fit to practice medicine. After further evaluation, it was recommended that Dr. Mena curtail his work-weeks to 40 to 50 hours. The Idaho State Board of Medicine ("Board") also had begun an investigation regarding Dr. Mena's training and ability to perform certain medical procedures. The Board and Dr. Mena entered into a Stipulation and Order in 2009, in which he admitted that he had violated the Medical Practice Act by failing to provide health care that met the required standard and in which he agreed to specific conditions of probation and restrictions on his license to practice medicine. On September 26, 2011, the Board issued an order terminating the Stipulation and Order. That same day, the hospital in Jerome gave Dr. Mena written notification that it had granted him limited medical privileges on the condition that he obtain additional training, that he had failed to do so, and that his privileges were forfeited. A month later, the Board sent Dr. Mena a letter asking him to respond to the hospital's action. He eventually submitted a thirteen-page written response that was rambling with many obscure references, grammatical and syntax errors, and vague sentences. More evaluations were ordered. The Board issued its Final Order in early 2014, finding that Dr. Mena suffered from "some level of impairment," and it stated that "sanctions were necessary upon [Dr. Mena's] license." Dr. Mena filed a petition for judicial review to the district court, arguing: (1) the Board initiated proceedings pursuant to the Disabled Physician Act and then imposed sanctions that were not permitted by that Act; (2) the Board's order was not supported by substantial evidence; and (3) the hearing officer erred in holding that certain evidence was inadmissible. The district court upheld the Board's action, and Dr. Mena then appealed to the Idaho Supreme Court. The Supreme Court reversed and remanded, finding that Board's own evaluation of the evidence showed that there was insufficient evidence to support the Board's order. View "Mena v. Idaho Bd. of Medicine" on Justia Law