Judge Refuses to Dismiss Whistleblower’s False Research Data Suit Against Duke University and Two Faculty Members

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On April 27, 2017, a federal judge in North Carolina refused to dismiss a False Claims Act (FCA) lawsuit against Duke University and some of its faculty. The suit alleges that Duke knowingly falsified medical research data in order to get federal grants. According to the judge, the whistleblower in the suit had adequately stated his case against the defendants.

The case was originally filed in West Virginia but was later transferred to a federal district court in North Carolina. The full case caption is United States of America, ex rel. Joseph M. Thomas, Plaintiff, vs. Duke University, Duke University Health System, Inc., William M. Foster, Ph.D., and Erin N. Potts-Kant, U.S. Dist. Ct. Middle Dist. N.C., Case No. 1:17-cv-276.

Click here for a copy of the Amended Complaint filed on November 13, 2015.

Denied Motion For Dismissal.

In a three-page order, U.S. District Judge Catherine C. Eagles denied dismissal motions by Duke and two defendants. Judge Eagles did not elaborate on her decision beyond saying that plaintiff and whistleblower Joseph M. Thomas had brought claims upon which relief could be granted.

To read the order for this case in full, click here.

The Whistleblower Suit.

The whistleblower, Joseph Thomas, was a laboratory research analyst in the Pulmonary, Asthma and Critical Care Division of Duke University Health Systems during the alleged violations. He originally filed his complaint in the Western District of Virginia in May of 2013. He accused the defendants of violating the FCA by faking data in an effort to get money from various federal agencies, including the U.S. Environmental Protection Agency and the National Institutes of Health.

One of the defendants was a clinical research coordinator in that same division and is charged with directly manipulating the research in question. The second defendant, a research professor of medicine, was her direct supervisor.

Repercussions of Clinical Research Fraud and Misconduct.

An accusation, even if later proven to be unfounded, may unfairly tarnish the personal and professional reputation of the researcher and institution. Findings of research misconduct can result in exclusion from grants, termination of employment, and possible civil and criminal penalties. Obtaining an experienced attorney at the earliest stages of an investigation can help the researcher to avoid many pitfalls and mistakes that can harm or even give up defense opportunities the researcher may have. At the very least, legal guidance can assist in presenting the researcher’s side of the case in an effective and organized manner that does not compromise a legal defense.

Going out and retaining an aggressive trial attorney who is unfamiliar with such matters can often be counter-productive and actually lessen the chances of a researcher coming out of an investigation unscathed.

To learn more on this topic, watch our informational video blog here.

To learn how The Health Law Firm can assist if you find yourself facing accusations of research fraud or misconduct, read one of my prior blogs here.

Don’t Wait Until It’s Too Late, Contact Health Law Attorneys Experienced in Clinical Research Fraud and Misconduct.

The Health Law Firm and its attorneys have experience in representing researchers, investigators, academicians and clinicians who are the subject of clinical research fraud and misconduct. The Health Law Firm and its attorneys also have experience in representing students, employees, researchers, investigators and “whistle blowers” who report such matters including those who become the victim or reprisals and retaliation by the person against whom the report is made. Don’t wait. Obtain the advice and counsel of experienced attorneys who are familiar with such matters and can assist you before it is too late.

If you are facing research misconduct or research fraud accusations, please visit our website for more information at www.TheHealthLawFirm.com or call The Health Law Firm at (407) 331-6620 or (850) 439-1001.

Sources:

Kennedy, John. “Duke Can’t Drop Whistleblower’s False Research Data Suit.” Law360. (April 27, 2017). Web.

Hofstra, Patricia. “Research Misconduct False Claims Act Lawsuit Upheld.” Duane Morris Law Firm. (April 27, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for medical research fraud, legal representation for clinical research fraud, clinical research fraud defense attorney, medical research fraud defense attorney, legal representation for allegations of clinical research fraud, legal representation for clinical research misconduct, clinical research misconduct defense attorney, legal representation for medical and clinical researcher investigation, legal counsel for falsifying research data, legal counsel for clinical trials and research, legal representation for manipulating data, whistleblower defense attorney, legal representation for whistblowers, legal counsel for whistleblower suits, whistleblower attorney, False Claims Act (FCA) defense attorney, legal representation for FCA violations, legal representation for allegations of FCA violations, health law defense attorney, reviews of The Health Law Firm attorneys, The Health Law Firm reviews
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

Rutgers University Faces Lawsuit Over Anesthesia Residency Program Head’s Alleged Sexual Harassment

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On May 8, 2017, Rutgers University was hit with a lawsuit in New Jersey state court from former and current school employees. The suit alleges that the university failed to prevent, stop and remedy sexual harassment and retaliation by the director of its anesthesia residency program. Additionally, the suit also alleges that Rutgers “fostered a harassing and discriminatory atmosphere.”

What must be remembered is that residents, interns and fellows fill dual roles. They are employees as well as “students”or graduate medical education (GME) program participants. Therefore, they have the same rights as any other hospital or institution employee.

According to the plaintiffs, they reported their claims to the university in August 2016 and provided ample evidence. Rutgers then followed with an internal probe and issued reports that the allegations were erroneously found. In the report, Rutgers stated that Dr. Jean Daniel Eloy had not violated either the state’s law against discrimination or the university’s policies on sexual harassment.

The Alleged Misconduct.

The lawsuit was filed on behalf of current Rutgers University employee Melinda Ball and former employees Rebecca Scholl and Sam Nia. The alleged misconduct occurred when all three plaintiffs were residents in the program that was overseen by Dr. Eloy.

Melinda Ball and Rebecca Scholl claim Dr. Eloy repeatedly sexually harassed them, and retaliated against them because they snubbed his sexual advances, according to the complaint. Dr. Eloy allegedly retaliated against Scholl in various ways, including falsely stating in her semi-annual review that she was “disrespectful, lazy and unprofessional,” the complaint states. Dr. Eloy also allegedly retaliated against Sam Nia, because she attempted to protect Scholl from the sexual harassment and retaliation.

Ball, Scholl and Nia have accused Rutgers of “failing to conduct an adequate investigation into plaintiffs’ complaints of discrimination, harassment and retaliation; and failing to take appropriate disciplinary action against defendant’s supervisors, managers, agents and employees who discriminated and retaliated against plaintiffs and created a hostile work environment for them,” the complaint states.

To read the complaint filed April 27 in Essex County Superior Court in full, click here.

To read a blog on a similar case of harassment, click here.

Discrimination in Gme Programs More Common than You Think.

Unfortunately, from what our clients have told us, discrimination in different forms is not uncommon in many graduate medical education programs. Although it may be sexually based, as in this case, it may also be based upon an illness or medical condition, sexual persuasion race or national origin. It is illegal to discriminate based on these grounds or even the perception of these grounds when they do not actually exist and most institutions have written policies and standards that prohibit it. Discrimination and harassment can make a residency or other learning experience intolerable and lead to poor performance and failure.

Students, residents, interns and fellows may be reluctant to report incidents of discrimination or harassment because of fears of reprisal. However, you should always report it. You are doing no favors to your self, your peers or the program itself when you fail to report it.

Contact Experienced Health Law Attorneys Representing Medical Students, Residents and Fellows.

The Health Law Firm routinely represents medical students, residents and fellows who run into difficulties and have disputes with their medical schools or programs. We also represent other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for medical students, legal representation for residents, legal representation for fellows, legal representation for disputes with medical programs and institutions, legal representation for discrimination, bullying and sexual harassment in the workplace attorneys, intentional infliction of emotional distress lawyers, academic review hearing, legal representation for physicians accused of wrongdoing, medical graduate defense attorney, defense lawyer for doctors, legal representation fro physicians, residents and intern legal representation, medical student attorney, medical resident lawyer, medical intern lawyer, civil proceeding, criminal proceeding, administrative proceeding, medical administrative hearings, administrative law, medical student legal defense counsel, medical resident lawyer, medical resident defense attorney, medical intern lawyer, medical intern attorney, The Health Law Firm reviews, reviews of The Health Law Firm attorneys

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

Accused of Irregular Behavior on the USMLE? Here’s What You Need to Know

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At The Health Law Firm, we frequently receive calls for consultations from medical students and medical school graduates who receive a letter from the National Board of Medical Examiners (NBME), concerning the United States Medical Licensing Examination (USMLE). The letter may accuse the student or medical resident of “Irregular Behavior” concerning one or more of the USMLE Step examinations. In many cases, the person receiving the letter is a graduate of a foreign medical schools who have applied through the Educational Commission for Foreign Medical Graduates (ECFMG).

Irregular behavior can consist of many different actions taken by the applicant, before, during or after taking a USMLE step exam. What you must know is that, in effect, you are being accused of cheating or a similar type of infraction.

Types of Irregular Behavior.

Examples of the types of conduct which we have seen before include:

– Attending a commercial USMLE preparation course that provides some of the actual examination questions.

– Soliciting information on the actual contents or actual questions on the examination.

– Using a smart phone during the examination.

– Talking with another person during the examination.

– Sharing information on the types of questions or cases that were on your examination with another person or on a blog over the internet.

– Leaving the test room and looking up answers in a text during the examination.

– Setting the building on fire during the examination so that you won’t have to complete the examination.

– Forging your Step Exam grade or a document containing it and providing it to your medical school or residency program.

These are just a few. For more examples, please see an article I wrote on this by clicking here.

Most Common Errors You Will Make When Accused of Irregular Behavior.

We have represented students accused of irregular behavior by consulting with them before and after USMLE or ECFMG hearings and on appealing the results. We have represented a number of examinees at the hearings held before the NBME at its headquarters in Philadelphia, Pennsylvania, and before the ECFMG, which hearings are also usually held in Philadelphia, Pennsylvania.

From our experience in such cases, the following are the most common errors made by the individual when accused by the USMLE or the ECFMG of irregular behavior:

1. Failure to retain the services of an attorney experienced with such cases immediately upon receipt of a letter from the NBME or ECFMG accusing you of irregular behavior. Take this as a formal charge accusing you of, in effect, cheating. THIS IS SERIOUS.

2. Telephoning, writing or e-mailing the NBME or ECFMG to explain “your side of the story.” Such a writing or conversation will be full of admissions that will help prove the case against you and you will not even understand this. (Please note that under U.S. law any statements you make, oral or written, can be used as evidence against you in any civil, criminal or administrative proceeding. This is not the case with statements that your attorney makes on your behalf.)

3. If you submit documents or statements to the NBME or ECFMG in support of your case, these will not be well-organized, well-labeled and in a form simple and easy to understand. In many instances, you will not even understand the legal issues you are facing or how to refute them.

4. You will fail to request or attend in person the hearing before the NBME or ECFMG Committee on Irregular Behavior or Committee on Individual Review (“The Committee”) in Philadelphia. You will mistakenly believe that a written statement and documents alone will carry the day and persuade them not to take adverse action against you.

5. You will fail to take an attorney experienced in such medical administrative hearings to represent you at The Committee hearing in Philadelphia.

6. You will not know how to properly present your evidence or present your own position to The Committee, if you do attend the hearing.

7. You will not know when or what kind of evidence (expert witness reports, statistical expert affidavits, affidavits of fact witnesses), you need to use to prove issues in your case before The Committee.

8. You will fail to understand and correctly respond to the questions that the many different Committee members (usually 12 or more) will ask you during the hearing.

9. You will fail to correctly follow all procedures in order to preserve your rights in the proceedings.

10. You will falsely believe that if you lose at The Committee hearing, it will be easy to win on appeal or somehow sue in court and prove you are right. This is almost never correct. You will have only one real chance at proving your case and this is at The Committee hearing in Philadelphia.

11. You will incorrectly believe that even if you are only suspended from taking the USMLE Step exams again for a short period of time, this will have no effect on your education or career. (Note: Your USMLE transcript will note this fact and this may prevent you from ever getting into a good residency program. See #1 above.)

Invest in Your Future Career.

You and your family have invested tens of thousands, if not hundreds of thousands of dollars, on your education so that you can become a physician. You have spent years of sacrifice and studying in order to become a physician. This is not the time to be cheap and to think that the cost of hiring an experienced legal counsel is too high. You could lose everything you and your family has invested in this. Do not be “penny wise and pound foolish.” You will need professional help if you are to get through this successfully. If you don’t care about these matters or you don’t believe this is a serious matter worthy of an investment for attorney’s fees, then go ahead and ignore this advice.

If you are not reading this until after you have lost the case and been found to have committed “irregular behavior” by the USMLE Committee on Irregular Behavior or by the ECFMG Committee,, I am sorry for you, but it is probably too late to be able to really do anything about it.

Contact Experienced Health Law Attorneys For Irregular Behavior or USMLE Issues Today.

The attorneys of The Health Law Firm provide legal representation to medical students, residents, interns and fellows in academic disputes, graduate medical education (GME) hearings, contract negotiations, license applications, board certification applications and hearings, credential hearings, and civil and administrative litigations.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: National Board of Medical Examiners (NBME), legal representation for medical students, legal representation for medical resident, Committee on Irregular Behavior (CIB) defense attorney, Committee for Individual Review (CIR) defense lawyer, legal representation for allegations of irregular behavior, United States Medical Licensing Examination (USMLE), Educational Commission for Foreign Medical Graduates (ECFMG) legal defense lawyer, USMLE defense attorney, legal representation for USMLE hearings, USMLE appeals defense attorney, health care defense lawyer, medical student attorney, medical resident lawyer, medical intern attorney, legal representation for civil proceeding, legal representation for criminal proceeding, legal representation for administrative proceeding, legal representation for medical administrative hearings, legal representation for administrative law, The Health Law Firm reviews, reviews of The Health Law Firm attorneys

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

Virginia Medical Board Wins Appeal Concerning Doctor’s Revoked Medical License

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On March 21, 2017, a Virginia appellate court ruled that a doctor’s state medical license was properly revoked for various reasons including allowing medical students to perform unauthorized medical procedures. The appellate court said the doctor’s due process rights weren’t violated because he had three months to prepare for an administrative hearing before the Virginia Board of Medicine.

Medical License Was Properly Revoked.

When the doctor originally presented his case in the trial court, the trial judge ruled that Dr. John Hagmann’s constitutional rights were violated. The trial court decided that when the Virginia Board of Medicine denied the doctor’s second request for a postponement of an administrative proceeding it erred. The trial court judge reversed the Virginia Board of Medicine’s decision revoking his license.

The court of appeals later decided that the trial judge’s decision was erroneous and reversed it. The appellate court based its ruling on the fact that Dr. Hagmann had already received one continuance and had more than three months to prepare for his hearing. According to the appellate court, the medical board’s denial of a second continuance didn’t violate Dr. Hagmann’s due process rights.

While teaching courses at a federal military school in 2012 and 2013, Dr. Hagmann allegedly allowed the students to perform invasive medical procedures on himself and on each other. These medical procedures were allegedly unapproved and had no medicinal or therapeutic purposes, according to the medical board.

According to the court’s opinion, Dr. Hagmann was also accused of encouraging students to use alcohol and various drugs in unapproved and dangerous ways. It indicated that he also provided medical treatment, including writing prescriptions, without keeping adequate records.

To read the court’s opinion in full, click here.

Conclusion.

The Virginia appellate court decided that the circuit court, the lower court in the case, erred by substituting its discretion for the Board’s discretion. However, the court of appeal also held that the circuit court did not err in rejecting Dr. Hagmann’s claims that the Board violated his due process rights.

Therefore, the court of appeal reversed the circuit court’s ruling and remanded with directions that the decision of the Medical Board revoking Dr. Hagmann’s license to practice medicine should be reinstated.

To learn more about the consequences of having your professional medical license revoked, click here to read one of my prior blogs.

Author’s Comments:

The problem I have with this decision is that the board of medicine usually takes years to investigate such cases. Once the charges are filed, they want to rush to a hearing, often without giving the defense adequate time to prepare. I have experienced this time and time again. It behooves the defense to make a clear record of the time that the port of medicine has had to prepare, the prejudice that will occur to the defense, and the lack of prejudice to the board.

Additionally, since there was a trial in a trial court decision, the trial court judge was in a much better position to weigh the credibility of the witnesses and make the decisions that were made. In a case where there is only been one prior continuance granted, for the appellate court to reverse the trial court judge, seems unfair to me, especially since the result is the revocation of the Doctor’s license. I often refer to this as the “death sentence” for the Doctor’s career. There isn’t a harsher sentence that a board of medicine can give.

Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents physicians, dentists, nurses, medical groups, clinics, and other healthcare providers in personal and facility licensing issues. To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Sources:

Kang, Peter. “Va. Med Board Wins Appeal Over Doc’s License Revocation.” Law360. (March 21, 2017). Web.

 

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

KeyWords: Legal representation for licensing issues, medical license defense attorney, legal representation for revoked license, legal representation for Board of Medicine investigation, Board of Medicine investigation defense attorney, medical board appeals, legal representation for administrative law hearing, administrative hearing defense attorney, legal counsel for Board of Medicine hearing, legal representation for Department of Health investigations, Department of Health investigation defense attorney, appeal of revocations, legal representation for Administrative Law Judge (ALJ) Hearings, administrative litigation defense attorney, legal representation for Federal Administrative Hearings, legal representation for Formal Administrative Hearings and Informal Administrative Hearings, legal representation for revocation hearings, The Health Law Firm reviews, reviews of The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

Medical Students, Residents and Fellows Need to Properly Disclose Medical Disabilities in advance of problems

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We are often retained to provide legal representation to medical school students, residents and fellows who run into difficulties and have disputes with their medical schools or programs. This may be after they are required to repeat a year, terminated from the program, or have other adverse action taken against them. When this occurs and we investigate the details, occasionally we find that the individual we are representing has a medical history of mental health issues that may have caused or contributed to the problems they are facing.

In many situations, the troubles that are faced could have been avoided if the student or resident had disclosed their medical condition to the school, program, or institution, and requested reasonable accommodations. However, after the adverse action has been taken it is often (but not always) too late to do this.

Use the institution’s forms to report a medical condition or disability.

All major medical schools, universities, residency programs, and hospitals in the United States have offices or departments to receive reports of medical conditions and disabilities and to assist the student/resident in obtaining support, resources and reasonable accommodations to help the student/resident be successful. However, if the institution is never notified of the medical condition or disability and is never given the opportunity to provide reasonable accommodations, then the student/resident has failed to take advantage of an opportunity that exists which may have helped prevent the adverse action that was taken.

If you have a medical condition or disability of any kind, especially one such as depression, learning disability, bipolar disorder, anxiety disorder, ADHD, a disease or illness which may affect your performance, or other condition that classifies as an illness or disability, you should be sure that this is diagnosed by the appropriate physician. You must also have that physician formulate reasonable accommodations that your institution, program, school or hospital can take that would help you to accommodate your condition. You should then complete the forms that your institution uses to report this and request reasonable accommodations to help you.

Don’t fear stigma from reporting a medical condition or illness.

We most often find that our clients have failed to report a medical condition or illness and request reasonable accommodations out of a fear that their program, professors, attendings and colleagues will discriminate against them and see them in a lesser light. Actually, the opposite is true. If a medical student our resident is failing academically, is unable to pass exams, or does not appear to be able to handle clinical rotations, it is more likely that the institution will feel that the person does not have the capability or motivation to succeed. However, by disclosing the medical condition or disability, this helps to explain such matters.

 

Illegal to discriminate based on disability or illness.

There are a number of federal laws and often state laws which protect a student or resident who has a medical disability or illness against discrimination. Additionally, almost all major colleges, universities and institutions have policies and procedures in place which prevent this. However, if the resident or student has not disclosed the medical condition or disability to anyone, there can be no argument made that the person was discriminated against because of this. Therefore, disclosure and a request for reasonable accommodation may be a big benefit in challenging adverse actions.

 

Contact Experienced Health Law Attorneys Representing Medical Students, Residents and Fellows.

The Health Law Firm routinely represents medical students, residents and fellows who run into difficulties and have disputes with their medical schools or programs. We also represent other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

 

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for medical students, legal representation for residents, legal representation for fellows, legal representation for disputes with medical programs and institutions, investigation by National Board of Medical Examiners (NBME), United States Medical Licensing Examination (USMLE), USMLE preparation course, USMLE hearings, USMLE appeals, foreign medical student defense lawyer, medical graduate defense attorney, defense lawyer for doctors, legal representation fro physicians, residents and intern legal representation, medical student attorney, medical resident lawyer, medical intern lawyer, civil proceeding, criminal proceeding, administrative proceeding, medical administrative hearings, administrative law, medical student legal defense counsel, medical resident lawyer, medical resident defense attorney, medical intern lawyer, medical intern attorney, accused of irregular behavior, The Health Law Firm reviews

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

 

Texas Appeals Court Affirms$1.37 Million in Sanctions Against Doctor who Sued Hospital Former Employers

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 16, 2016, an appeals court in Texas affirmed a $1.37 million sanction against a doctor. The physician was ordered to pay the fine after the dismissal of a defamation lawsuit he filed against his former employers. The decision affirmed that the actions of his former employers, Baylor College of Medicine (Baylor) and Texas Children’s Hospital, did not cause the litigation fees which the court assessed to the doctor as sanctions.

The case had previously made its way up to the Texas Supreme Court, which makes the November 16, 2016, opinion the second time the Texas Fourteenth Court of Appeals has weighed in on the case. Additionally, it is the second time it has held the sanctions were merited for Dr. Rahul K. Nath.

The Back Story of the Case.

According to the opinion, Dr. Nath was employed by Baylor as a plastic surgeon and was affiliated with Texas Children’s Hospital. He was fired in 2004 and in February 2006 filed a lawsuit against his former supervisor at Baylor and Texas Children’s. According to court documents, Dr. Nath had accused his former supervisor of making defamatory statements about him after he stopped working. The alleged defamatory statements included that Dr. Nath had been fired, was unqualified and lacked professional ethics and integrity. (Note: We are just stating what was alleged in the lawsuit.)

To read the opinion in full, click here.

Were the Former Employers Responsible for the Accumulated Attorney and Litigation Fees?

The court was considering whether the behavior of Baylor or Texas Children’s was ultimately responsible for the fees accumulated litigation fees and expenses in the case. Previously, the trial court found that both Texas Children’s and Baylor’s actions had not caused the expenses for which Dr. Nath was sanctioned. The trial court wrote that the amount was appropriate as it was “far less” than the actual fees incurred by either party in defending Dr. Nath’s claims.

On appeal, Dr. Nath argued that the trial court hadn’t held a proper evidentiary inquiry, that it had based its sanctions award on “conclusory and self-serving” affidavits. Dr. Nath claimed that he was wrongly denied discovery in the case. To learn more about Dr. Nath’s challenge, click here.

Despite Dr. Nath’s arguments, the Fourteenth Court disagreed, holding that the trial court followed the exact instructions from the Supreme Court before deciding to impose the sanctions. Additionally, the court found that there was evidence in the record to support the conclusion that neither Texas Children’s nor Baylor’s conduct caused the expenses that were passed on to Dr. Nath as sanctions.

Adequate Supporting Evidence.

The first time the case came before the Fourteenth Court of Appeals, it affirmed the sanctions against Dr. Nath. The high court held that there was evidence to support the trial court’s finding of bad faith and improper purpose on Dr. Nath’s part with regard to certain filings in the case.

Dr. Nath appealed, and the Texas Supreme Court held that the trial court didn’t abuse its discretion in finding the doctor had exercised bad faith and improper purpose in certain filings. The high court remanded it back to the trial court to consider to what extent, if any, Texas Children’s and Baylor’s actions may have “caused the expenses for which recovery is sought.”

After a hearing, the trial court determined that neither employer’s behavior caused the expenses, and again imposed the sanctions against Nath. In appealing that ruling to the Fourteenth Court of Appeals, Dr. Nath argued that the trial court had made procedural errors in hearings and evidence submission in reaffirming the sanctions.

The trial court granted Texas Children’s and Baylor’s motions in June 2010, and also sanctioned Dr. Nath $726,000 for a portion of Texas Children’s fees in defending the suit and $644,500 for a portion of Baylor’s. The Fourteenth Court of Appeals affirmed that ruling, and Dr. Nath appealed to the state Supreme Court.
To learn more about defamatory statements and how to handle such claims, click here to read one of my prior blogs.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in Centers for Medicare and Medicaid Services (CMS) investigations, Medicare Audit defense, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Knaub, Kelly. “Texas Appeals Court Affirms Doc’s $1.3M Sanction.” Law360. (November 16, 2016). Web.

Knaub, Kelly. “Doc To Challenge $1.3M Sanction Before Texas High Court.” Law360. (January 15, 2014). Web.

“Texas Appeals Court Affirms Doc’s $1.3M Sanction.” LexisNexis. (November 16, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
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Hospital Negligence Lawsuit Dropped by Florida High Court

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 30, 2016, The Florida Supreme Court announced the decision to dismiss a negligence suit filed against a hospital over the death of patient Ashley Lawson.  Lawson escaped from Shands Teaching Hospital and Clinic, Inc.  The Shands psychiatric hospital is now known as the UF Health Shands Psychiatric Hospital and is located in Gainesville, Florida.

The main legal issue in this case was whether the conduct of the hospital was ordinary negligence or was medical negligence (medical malpractice).  In Florida, if the facts alleged constitute a claim for simple negligence, then there are no pre-suit proceedings required, no medical expert witnesses required, and it is usually much easier and much less expensive to try the case.  However, if the facts stated in the suit are medical negligence allegations, then there are a number of procedural hurdles that a plaintiff must overcome.  Additionally, the case is usually much more expensive and time consuming to try.

Patient Was Mentally Ill.

Ashley Lawson was admitted to the hospital on November 1, 2012, because of a psychiatric illness, impulsive behavior, drug abuse and several suicide attempts, according to reports.  According to her estate’s initial jurisdictional brief, Lawson was transferred to the locked impatient unit at Shands for her own safety.

Lawson Allegedly Freed Herself.

According to reports, an employee’s badge and keys were left unattended, which gave Lawson the opportunity to free herself and escape on January 23, 2013.  Lawson died soon after she had escaped.  She was struck and killed by a tractor trailer on Interstate 75.

A Request To Reconsider The Ruling.

On November 15, 2016, the Florida Supreme Court abandoned its denial of a motion from defendant-appellee Shands Teaching Hospital and Clinics, Inc. asking it to reconsider its ruling from September 13, 2016.  The earlier ruling denied a motion for voluntary dismissal filed by the plaintiff, the Estate of Ashley Lawson.  The court’s earlier denials had decided not to dismiss the case by a 4 to 3 split decision, with Chief of Justice Jorge Labarga and Justices Barbara J. Pariente, James F.C. Perry and R. Fred Lewis in the majority and Justices Ricky Polston, Charles Canady and Peggy Quince dissenting.

Since the ruling on November 15, 2016, Lawson’s estate had relinquished its right to file a brief on the merits, noting that the parties are “contractually prohibited from further litigation in this matter.”  This language seems to indicate that a settlement had been reached between the parties.  Shands Hospital filed a motion on November 27, 2016, looking for instructions on its due process rights and its counsel’s duty to proceed.  Shands stated:  “Respondent believes it should be entitled to submit a merits brief to this court and present oral argument since, as this court has made apparent through its orders, it views this case as involving an important issue of statewide impact.”

Where Do You Draw The Line?

This case in particular has raised questions on where the line should be drawn between medical negligence and ordinary negligence.  However, in the motion for reconsideration, Shands Hospital stated that there was no certification of a question of great public importance or a certified district conflict made in the lower court’s decision in the case.

Shands Hospital’s motion to dismiss the case had been denied by the trial court.  Shands then appealed the Florida First District Court of Appeal. The three-judge panel on the Court of Appeal was unable to come up with a definitive result, so the entire Court of Appeal decided to review the case and final reached a 8-6 decision to trump the lower court’s denial.

After that, Lawson’s estate brought the case to the Florida Supreme Court, seeking reversal based on its argument that the First District Court of Appeal’s decision allegedly conflicted with two Fifth District Court of Appeal decisions on what constitutes ordinary negligence versus medical malpractice (medical negligence).  The estate asked for an extension to file its initial merits brief, stating that the parties were discussing a settlement. On July 28, 2016, the estate filed a notice for voluntary dismissal because a deal was in place.

The Supreme Court took the position that the settlement notwithstanding, the Supreme Court should move forward with the case.  Court’s will often do this when they expect that the legal question will come up again and again in the future, unless they go ahead and decide it.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.  We represent medical students, interns, residents, and fellows in disputes with their graduate medical education (GME) programs.  We represent clinical professors and instructors in contract disputes, employment disputes, clinical privileges matters and other disputes with their employers.  We often act as the physician’s personal counsel in medical malpractice litigation.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com

Sources:
“Shands Teaching Hospital and Clinic Inc. v. Estate of Ashley Lawson.” FindLaw. (August 28, 2015). Web.

Hale, Nathan. “In Shift, Fla. High Court Drops Hospital Negligence Suit.” Law360. (November 30, 2016). Web.

“Justice Won’t Drop Case In Shands Vista Patients Death.” The Gainesville Sun. (September 16, 2016). Web.

“Court Sides With Hospital In Death of Escaped Patient.” Health News Florida. (August 31, 2015). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.