Holland & Hart Healthcare Law Blog

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.

Economic Credentialing (Part II): The Empire Strikes Back.

Recent hospital Board/medical staff confrontations over loyalty and competition have ripened into full blown warfare and some hospitals in California, Arkansas, Ohio and Idaho have declared war and have imposed restrictions and loyalty oaths on their medical staffs that would make even John Ashcroft blush. See "Hospitals Take No Prisoners," Modern Healthcare, February 16, 2004 p. 10.

Economic Credentialing (Part I): A Failure of Trust

Spurred by pressures on their income a group of orthopedic surgeons decide to open their own surgery center to compete with the community hospital in town. The surgeons direct their best payer mix patients to their surgery center and their Medicare/Medicaid patients to the hospital. The avaricious surgeons rake off the revenue cream and the hospital, which used its much needed surgical revenues to finance its emergency rooms and other services that do not directly pay for themselves are left holding the bag as their revenues drift south.

California Court Rules Hospital Medical Staff Is A Separate Legal Entity Capable Of Suing Hospital

The medical staff of Community Memorial Hospital in Ventura, California has standing to sue the hospital as a legal entity for the violation of physician rights according to a Ventura County Circuit Court Judge.