Friday, May 31, 2013

Suicidal Patient Escaped From Kaiser, Mom Says

Suicidal Patient Escaped From Kaiser, Mom Says
Courthouse News Service
May 31, 2013

ROSEVILLE, Calif. (CN) - A suicidal patient escaped through an unlocked door at a Kaiser hospital while awaiting transfer to a psychiatric facility, his parents claim in court.

Brian and Suzanne Amsbaugh sued Kaiser and Securitas Security Services for wrongful death and premises liability. Their son, Corey Amsbaugh, was diagnosed at Kaiser Roseville's emergency room with "psychosis, paranoia and suicidal ideation," the complaint says. "Health care providers and/or others at Kaiser Roseville determined that decedent was a 'high risk for suicide' and detained decedent," involuntarily, pending transfer to a psychiatric facility, according to the complaint.

"While waiting for the transfer to a psychiatric facility, decedent was placed, put, brought to, detained or otherwise kept in a designated room at Kaiser Roseville, chosen by defendants, to prevent his escape and the Kaiser Roseville's security personnel were summoned for 'bedside patient observation' to prevent decedent from escaping," the complaint continues. However, the next day "decedent walked out of the hospital room, through an unlocked door, escaped from Kaiser Roseville and committed suicide," according to the complaint.

The Amsbaughs allege Kaiser and Securitas "created, knew, or in the exercise of reasonable care and diligence, should have known, that unless reasonable inspections, repairs, modifications, supervision, control, monitoring and other appropriate measures were made and/or undertaken, such dangerous and defective conditions endangered the safety of patients."

Plaintiffs are represented by Werner Meissner of San Pedro.

Saturday, May 25, 2013

Kaiser Whistleblower Case Steams Forward

Kaiser Whistleblower Case Steams Forward
Courthouse News Service
May 09, 2013

SAN FRANCISCO (CN) - The Permanente Medical Group must face a former employee's claim that she was fired after complaining about sub-standard care, a federal judge ruled.

Mirabel Ortiz claims that The Permanente Medical Group-a division of Kaiser Permanente-fired her after she raised concerns that the way managers handled the orthopedics department harmed patients. Kaiser claimed it terminated Ortiz for committing "personal improprieties," according to Ortiz's first amended complaint.

As a member of SIEU-UHW, Ortiz says collective bargaining agreements between Kaiser and the union mandate a progressive discipline process, which hospital officials failed to follow. She filed suit in San Mateo County court against TPMG and her manager, Cindy Lambdin, claiming wrongful termination, retaliation for whistleblowing and breach of employment contract as well as infliction of emotional distress.

Earlier this year, Kaiser successfully moved the action to federal court since many of Ortiz's claims involve breaches of a collective bargaining agreement. The healthcare giant then sought to dismiss the action for non-suit.

And while U.S. District Judge Susan Illston found that Ortiz failed to follow procedural grievance requirements under the collective bargaining agreement-by Ortiz's own admission-enough questions exist as to whether Kaiser retaliated for protesting unsafe conditions for the action to move forward.

"The first amended complaint alleges that plaintiff 'protested about the unsafe and unhealthy working conditions at her place of employment, including complaints that defendant Lambdin was running the orthopedics department in such a way as to be harmful to patients, among other things.'" Illston wrote. "The court concludes that plaintiff has alleged facts that add up to more than a sheer possibility that defendants discharged plaintiff in retaliation for making complaints."

Illston rejected Kaiser's claim that Ortiz failed to follow administrative procedure in pursuing her whistleblower action, namely by failing to file a grievance with the labor commissioner. She noted that the permissive legislative language of the statute and four examples in case law do not impose such restrictions on allegations of labor code violations.

Though Illston found Ortiz's claims of infliction of distress are tied to her failed contract claim, the wrongful discharge claim connects Kaiser's alleged whistleblower retaliation and should be tried.

Ortiz can amend her complaint to cure deficiencies in the contract action, Illston concluded.

Hospital Prices No Longer Secret As New Data Reveals Bewildering System, Staggering Cost Differences

Hospital Prices No Longer Secret As New Data Reveals Bewildering System, Staggering Cost Differences
Jeffrey Young
Chris Kirkham

When a patient arrives at Bayonne Hospital Center in New Jersey requiring treatment for the respiratory ailment known as COPD, or chronic obstructive pulmonary disease, she faces an official price tag of $99,690.

Less than 30 miles away in the Bronx, N.Y., the Lincoln Medical and Mental Health Center charges only $7,044 for the same treatment, according to a massive federal database of national health care costs made public on Wednesday.

Americans have long become accustomed to bewilderment and anxiety when confronting health care bills. The new database underscores why, revealing the perplexing assortment of prices for medical care, with the details of bills seemingly untethered to any graspable principle.

Even within the same metropolitan area, hospitals charge prices that differ by staggering degrees for the same procedures. People without health insurance pay vastly higher costs for care when less expensive options are often available nearby. Virtually everyone who seeks health care winds up paying inflated prices in one form or another as these stark disparities in price sow inefficiencies throughout the market.

While this basic picture has emerged as the consensus reality among health care experts, their evidence has been primarily anecdotal. Hospitals have protected their price lists -- documents known as charge masters -- as closely guarded secrets.

Their prices are secret no more...

US not sure how to evaluate hospital performance; don't know if they will cause more deaths if they punish high readmission rates

Hospital deaths and readmissions not linked: study
By Andrew M. Seaman
Feb 12, 2013
(Reuters Health)

A measure used by Medicare to penalize hospitals for poor performance is not linked to how many patients die after being admitted, suggests a new study.

The study, published in the Journal of the American Medical Association on Tuesday, suggests that hospitals can keep the number of patients who come back for more treatment low without having more of them die.

"The concern was that their performance in one area is going to compromise their performance in another," said Dr. Harlan Krumholz, the study's lead author from the Yale University School of Medicine in New Haven, Connecticut.

Currently, the U.S. Centers for Medicare and Medicaid Services (CMS), which oversees the federal government's insurance programs for the elderly, disabled and poor, uses those measures to judge a hospital's quality.

CMS also punishes hospitals with high readmission rates by reducing their payments. In 2013, CMS estimates hospitals will lose - on average - 0.3 percent of their funding, about $270 million overall (see Reuters Health story of January 22, 2013 here:

For the new study, Krumholz and his colleagues looked at whether there was a link between the number of people who died within 30 days of being admitted to hospitals and the number of people who came back for more treatment within 30 days after they were discharged.

They analyzed data on older Americans on Medicare who were admitted to U.S. hospitals between July 2005 and June 2008 with a heart attack, heart failure and pneumonia - the conditions CMS tracks.

They found about 20 percent of heart attack patients, 24 percent of heart failure patients and 18 percent of pneumonia patients came back to the hospital for more care. That compared to about 17 percent of heart attack patients and 11 percent of heart failure and pneumonia patients who died.

Overall, they found no relationship between the number of heart attack and pneumonia patients who were readmitted and those who died.

The researchers also found that between 5 percent and 9 percent of hospitals were able to have both low readmission and death rates, which Krumholz said should calm concerns that doing well in one area means doing poorly in the other.

"I think our goal should be to learn from the hospitals excelling in both areas and spread those ideas," said Krumholz, whose team created the measures CMS uses to judge hospital quality.

He added that the findings also suggest that readmission and death rates measure two different events, and one is not dependant on the other.


But Nancy Foster, vice president for quality and patient safety policy at the American Hospital Association, said the new study does not close the door on questions about readmission and death rates.

"This question that has been raised around the link between readmission and mortality is beginning to be investigated. There is no easy path to know what the relationship is because it's a very complicated problem," said Foster, who was not involved with the new study.

Foster told Reuters Health that she believes the new study has flaws, including that the researchers adjusted the rates for smaller hospitals, which led to the findings. She added that there could be other reasons why hospitals performed well on both measures.

"I'd love to say that it's only to the hospitals' credit that they've done so well (to) have low levels of mortality and readmission. But in all fairness, we recognize that community and other factors have an important role," she said.

Chicago doctors over-sedated patients and did unnecessary tracheotomies in a bid to boost profits

Allegations of unnecessary procedures at hospital
Associated Press
April 16, 2013

CHICAGO (AP) — At least two doctors at a Chicago hospital endangered patients by intentionally over-sedating them and performing unnecessary tracheotomies in a bid to boost profits, a graphic and wide-ranging complaint released by federal prosecutors Tuesday alleges.

The document doesn't directly say patients at Sacred Heart Hospital died as a result of the procedures that involve cutting a hole into someone's windpipe, but it notes mortality rates from one of the doctor's tracheotomies were far higher than average.

The investigation of the hospital dating back to 2011 led to arrests on Tuesday of the hospital's owner, Edward Novak, 58, of Park Ridge, as well as another executive and four doctors in an alleged conspiracy to exchange kickbacks for referral of patients insured by Medicare and Medicaid. The arrested doctors allegedly received kickbacks from the hospital totaling more than $225,000, the 90-page complaint said.

The complaint didn't indicate how much the hospital may have profited from the alleged unnecessary procedures.

"We will not allow patients to be pawns for profit," a Chicago-based U.S. health and human services inspector, Lamont Pugh III, told reporters Tuesday. He added that such alleged kickback schemes "corrupt the medical decision making process."

None of the six arrested Tuesday is charged in connection with the alleged unneeded procedures, which is part of an ongoing criminal investigation of the 119-bed hospital. They are charged with conspiracy to violate the federal anti-kickback statute.

One of the doctors arrested Tuesday, urologist Subir Maitra, of Chicago, was allegedly heard in another secret recording as lamenting that he once made "so much money" from doing penile-implant procedures — but that he no longer performed as many because Medicare had decreased its rates of reimbursement, the complaint says.

The 73-year-old's attorney, Thomas Durkin, said his client denied any wrongdoing.

In a secret recording of Novak by an administrator cooperating with investigators, Novak states tracheotomies are Sacred Heart's "biggest money maker" as he appeared to acquiesce to unneeded tracheotomies. He allegedly adds the hospital can make $160,000 for a single tracheotomy if the patient stays 27 days, according to prosecutors.

Hospital staff told investigators another doctor allegedly working with the doctor performing the tracheotomies would intentionally over-sedate elderly and disabled patients so they would eventually be unable to breathe on their own — extending their stays and leading to tracheotomies, both of which boosted revenues, the complaint says.

The complaint said the doctors suspected of involvement in performing unnecessary tracheotomies worked inside the hospital, unlike the doctors arrested Tuesday. Federal authorities left open the possibility those two doctors and others could face charges.

Looking tired and disheveled — several of the arrested doctors wearing T-shirts — Novak and the five others appeared together in federal court Tuesday afternoon. Prosecutors explained the charges to them, but they will enter pleas later. A conviction on a charge of violating the federal anti-kickback statute carries a maximum five-year prison sentence.

U.S. Magistrate Judge Daniel Martin ordered that Novak, the executive and one of the doctors be held at least until a detention hearing set for Friday. The others, including Maitra, were released Tuesday afternoon and they did not speak to reporters. Messages left at Novak's office were not returned Tuesday, and there was no answer at a residential number for him.

Hospital Chief Nursing Officer Jim Bailey said in a statement that the Sacred Heart Hospital is cooperating with law enforcement and continuing to provide patient care.

The FBI raided the west side Chicago hospital on Tuesday morning, serving warrants and carting away evidence. About $2 million in Medicare reimbursement payments also were seized on Tuesday from various bank accounts, prosecutors said.

The death rate among those who received tracheotomies by the doctor from 2010 to 2013 was nearly 18 percent within 14 days of surgery; that's well above the around 6 percent rate performed by other surgeons, according to the complaint.

Authorities decided to move ahead with arrests, in part, after discovering the possibility recently that unnecessary procedures were being done and when one patient may have been singled out for an uneeded tracheotomy, authorities said Tuesday.

"When we learned about these procedures, we did everything we could to stop them from happening," said Gary Shapiro, who is the interim U.S. attorney in Chicago.

The hospital has some 40 patients currently and public health officials are closely monitoring their care, he said.

Illinois Department of Public Health said in a Tuesday statement it is assessing Sacred Heart's ability to care for patients and will conduct a full inspection.

Wednesday, May 22, 2013

Kaiser incorrectly told patient that surgery would be "routine"; kidney and lung damage resulted

Bleeding Risk Not Revealed, Kaiser Patient Says
Courthouse News
May 21, 2013

PORTLAND, Ore. (CN) - When a 410-pound woman consulted a Kaiser obstetrician-gynecologist about the feasibility of becoming pregnant, the doctor recommended uterine surgery but did not warn her about the risk of complications due to her weight, the woman claims in court.

Dr. Rachel Algenio told plaintiff Karen Carmocan about a fibroid tumor on her uterus in 2008, according to the complaint. Yet, "it was not until 2011 when Dr. Algenio advised Karen that the said growth would interfere with her ability to have children and because of such, Dr. Algenio recommended that Karen have surgery to remove the growth from her uterus. Dr. Algenio represented to Karen that if she had the tumor removed she should be able to give birth to a child," the complaint states.

Carmocan initiated a discussion with Dr. Algenio about pre-surgical blood storage in case she needed a transfusion, according to the complaint. However, Dr. Algenio dissuaded her, saying it was not necessary because the procedure was "routine," the complaint continues.

Carmocan lost a higher than usual amount of blood and she began to have complications in the days following the operation, the complaint says. The complications included nausea and vomiting, breathing difficulties, excessive coughing and an unusually high level of white blood cells, according to the complaint. "An elevated white blood cell count can be an indication of an infection in the body," the complaint says. She needed to use a walker to walk because the blood loss had made her anemic, the complaint continues. After another two days, Carmocan was given a transfusion, but the anemia symptoms continued, as well as the coughing and vomiting, according to the complaint.

A day after she went home, Carmocan was back in the hospital because of her continuing problems, where she was diagnosed with pneumonia and sepsis, the complaint says.

Carmocan blames Kaiser for the pneumonia and subsequent permanent lung damage, alleging it was caused by aspirated stomach contents from her untreated post-operative vomiting. She also claims excessive use of the antibiotic Vancomycin, given for the pneumonia, caused kidney failure and irreversible kidney damage. "Anemia played a significant role in the events that followed Karen's surgery," the complaint says, depriving her brain and other organs of red blood cells and oxygen for an extended period. Carmocan says Dr. Algenio breached the standard of care by causing the excessive blood loss, not anticipating anemia as a likely result and not replacing the lost blood sufficiently before sending her home.

Carmocan says Kaiser should have anticipated and warned her about "the problems that can occur during and following surgery performed on a person weighing 400 pounds," including "the increased risk of intraoperative bleeding in a patient when the surgical field is deep below an abdominal wall that is several inches thick" as well as "the increased risk of post-operative pneumonia in a patient whose extremely large body reduces the ability to breathe deeply and move about in the bed."

"Had Karen been advised by Dr. Algenio of the severity of risk of the procedure, especially the risks related to Karen's excessive weight, such as the increased risk of intraoperative bleeding," she would have decided not to pursue the surgery, she says.

Karen Carmocan gave up an educational goal of becoming a family counselor so that she and her husband, Dan, could try to have a family of their own, according to the complaint. However, "defendant's staff has represented to Karen that if she were to now become pregnant she would need to be placed on kidney dialysis during the time of the pregnancy, and even if she were to be placed on kidney dialysis, Karen would still have little chance of being able to bear a child," she says.

Karen and Dan Carmocan are suing in Multnomah County Circuit Court for $1.3 million.

Tuesday, May 21, 2013

Judge feels sorry for hospital that hired thugs to silence doctor, sets aside jury verdict punishing hospital

Larry Anderson is now CEO of Tri-City Medical Center in Oceanside, California.

"The doctor in question, Michael Fitzgibbons, alleged IHHI's former CEO, Bruce Mogel, hired a thug with alleged ties to the Santa Ana police to, among other things, frame him on a false gun brandishing charge. The jury returned a verdict of $5.7 million for Dr. Fitzgibbons."

The Nightmarish Saga of Michael Fitzgibbons
The case pitting the whisteblowing doc against Integrated HealthCare Holdings Inc. appears to be over
OC Weekly News
Feb 21 2013

On June 28, 2006, Santa Ana police arrested Dr. Michael Fitzgibbons, an infectious-diseases specialist at Western Medical Center in Santa Ana, for allegedly waving a gun in traffic after they found a pistol and a pair of black gloves in his car. There are still many questions surrounding the incident: Who were the mystery callers who dialed 911, reporting the suspect was a man in a white medical coat driving a brown Toyota Camry? How were police able to find the vehicle so quickly in the hospital's parking lot several blocks away? Why would a soft-spoken doctor who'd just won a whistleblowing lawsuit celebrate by pointing a gun at strangers in traffic?

These questions may never be answered. But according to a jury trial that just ended at the Orange County Superior Courthouse in Santa Ana, there's one fact upon which everyone agrees: The alleged road-rage incident in question never happened. Instead, somebody planted the gun and gloves in Fitzgibbons' car. On Feb. 13, a jury went a step further, agreeing with Fitzgibbons' claim that he'd been framed by his employer in retaliation for an email he sent to colleagues questioning the company's financial outlook. The jury awarded him a whopping $5.7 million in damages.

In his successful lawsuit against the company, Integrated HealthCare Holdings Inc. (IHHI), Fitzgibbons had sought more than $46.8 million, arguing that his arrest at the hospital—and a series of subsequent strange events that nearly killed a family member—nearly destroyed his medical practice and left him permanently scarred with post-traumatic stress disorder. Lawyers for IHHI tried to convince jurors that Fitzgibbons had somehow set himself up in a bizarre ploy to appear as an unstable martyr, a strategy the jury took less than a day to reject.

This surreal saga began in 2005, a year after IHHI took over the cash-strapped Western Med and three other Orange County hospitals from the scandal-plagued Tenet Corp. As chief of the hospital's medical staff, Fitzgibbons was concerned that patient care might suffer under IHHI because the company just defaulted on a $50 million loan; in May of that year, he sent a pointed email to colleagues raising that concern. When IHHI officials got wind of this, they promptly sued him for slander and interfering with business practices. Fitzgibbons countersued, arguing that IHHI's lawsuit violated his free speech; a judge agreed with the doctor and tossed out the company's suit in June 2006.

Two weeks after the [dafamation case] decision, Santa Ana police arrested Fitzgibbons for the alleged gun-waving, but he was released after the department impounded his car and fingerprinted and strip-searched him at the police station. Because prosecutors had no eyewitnesses, his fingerprints weren't on the gun and DNA taken from the gloves failed to show a match, the doctor was never charged with a crime. But when he went to pick up his car at the impound lot on July 5, he quickly saw something that hadn't been in the vehicle when the police had found the gun—a plastic sack full of pills, each one stamped with the Playboy-bunny logo. Figuring someone was hoping to frame him yet again, Fitzgibbons immediately handed the bag over to his attorney, who flushed the pills down the toilet.

His troubles weren't over yet. On July 16, his daughter's car flipped on the 22 freeway. Miraculously, neither she nor her two passengers was injured, but as Fitzgibbons pulled out of his driveway, he realized one of his tires was flat. Although authorities ruled the crash an accident, Fitzgibbons was suspicious enough to hire a private crash investigator, who found a two-inch slash in one of the tires (see "Car Trouble," Aug. 4, 2006). Irvine police refused to investigate his claims, however, and Fitzgibbons tried to move on with his life.

Yet controversy and lawsuits continued to circulate around IHHI. The company's main lender, Medical Capital Holdings, turned out to be a Ponzi scheme whose investors lost hundreds of millions of dollars, while the lender's executives used the cash to finance lavish parties and even purchase a multimillion-dollar private yacht. In yet another bizarre twist, IHHI chief executive officer Bruce Mogel personally pressured the lender to obtain a $5 million loan for an Internet-porn advertising firm, E-Mark, that appeared to be a phony company (see "New Complications In the IHHI Saga," July 30, 2009).

One of the lawsuits swirling around IHHI led to an under-oath deposition of Larry B. Anderson, IHHI's vice president, which provided the first clue about the mysterious road-rage incident involving Fitzgibbons. According to Anderson, shortly after Fitzgibbons won his lawsuit against IHHI, Mogel told him that the doctor needed to be "humbled." Mogel, Anderson added, then proceeded to brag that he had a friend named Mikey Delgado, a weight-lifting thug who had Santa Ana cops on his payroll and could cause trouble for Fitzgibbons or any other doctor who interfered with the company.

Mogel instructed Anderson to issue a $10,000 check to Delgado's webpage-design company, Form Labs, which never did any work for IHHI, whose own investigators later determined it to be a front company with nothing to show for itself but a post-office-box address in Scottsdale, Arizona, where Mogel lives. After he cut the check and Fitzgibbons was arrested, Anderson suspected the mysterious Delgado had planted the gun in the doctor's car. Those suspicions were confirmed, he adds, when Mogel appeared to relish in Fitzgibbons' plight, even remarking, "People don't know how powerful I am."

Court Reverses Run-Away Multi-Million Dollar Jury Verdict
An Orange County judge has reversed the jury verdict that found Integrated Healthcare Holdings, Inc liable for intentionally inflicting emotional distress on a doctor.
by Enterprise Counsel Group, lawyers for IHHI
May 10, 2013

In February, it was widely reported an Orange County jury found a hospital chain, Integrated Healthcare Holdings, Inc. (IHHI), liable for intentionally inflicting emotional distress on a doctor. (Campbell, Orange County Register, 2/13; Campbell, Orange County Register, 2/8). The doctor in question, Michael Fitzgibbons, alleged IHHI's former CEO, Bruce Mogel, hired a thug with alleged ties to the Santa Ana police to, among other things, frame him on a false gun brandishing charge. The jury returned a verdict of $5.7 million for Dr. Fitzgibbons.

Yesterday, Judge Gregory H. Lewis of the Orange County Superior Court set aside the jury's verdict in its entirety. In doing so, the Court granted judgment for IHHI. The judgment states, "Plaintiff Dr. Fitzgibbons will take nothing from Defendant IHHI" and "Defendant IHHI [will] recover from Dr. Fitzgibbons its cost of suit."

Judge Lewis explained, "after full consideration of the evidence presented at trial, the court determined the jury's verdict was not supported by substantial evidence." Judge Lewis also determined "it is more probable than not" the jury engaged in misconduct prejudicial to IHHI. Finally, Judge Lewis found the jury's verdict appeared "to be a product of passion and prejudice instead of an evaluation of the extent of [Dr. Fitzgibbons'] emotional distress."

"Needless to say, this is a huge relief for a company dedicated to putting its money toward the best possible patient care, not paying millions of dollars to a single doctor who hired a contingency lawyer to complain he was distressed, even though the doctor in question admittedly never missed a single day of work or presented evidence of the slightest economic loss," says David A. Robinson, IHHI's lead trial attorney. Per Robinson: "As noted in the Court's order, 'at worst' Dr. Fitzgibbons claimed 'some other doctors poked fun at him.' That is hardly 'severe' emotional distress justifying taking money from patient care to make a single doctor and his lawyer rich."

One reason the Court found the jury's verdict was not supported by substantial evidence is the Court rejected Dr. Fitzgibbons' claim that IHHI ratified its former CEO's alleged conduct. Per Robinson: "The evidence showed Dr. Fitzgibbons' entire case rested on the testimony of one man, Larry Anderson. Anderson admitted his conjecture that his former boss, Mogel, might have hired a thug was 'without meat' and 'without substance.' Indeed, this is why Anderson claimed he kept this story a complete secret from everyone else at IHHI while Anderson worked there. Anderson never got around to telling anyone about this admitted speculation until almost two and a half years later, and then under suspicious circumstances. How could IHHI have ratified conduct that Anderson admittedly first concealed, then later claimed was only speculation?"

Enterprise Counsel Group, A Law Corporation (ECG) is a business law firm specializing in trial, appellate, transactional, labor and real estate matters...

Friday, May 17, 2013

Kaiser Nurse: High-Risk Job, No Training, Fired

It's possible that Dissanayake and Giles simply didn't want to work with AIDS and hepatitis patients.

Kaiser Nurse: High-Risk Job, No Training, Fired
Courthouse News
May 14, 2013

SANTA ANA, Calif. (CN) - When Kaiser assigned an urgent care nurse to care for patients whose conditions were beyond the scope of her experience and training, she asked for training but was disciplined and fired instead, she says in a complaint filed in Orange County Superior Court.

Amali Dissanayake, RN, worked in Kaiser's urgent care clinic, where she "was responsible for checking patients in, taking vital signs, and following general physician orders," according to the complaint. When the lead nurse in another department, the Nurse Clinic, went on medical leave, Dissanayake was assigned to fill her position. "As lead nurse in the Nurse Clinic, plaintiff was responsible for taking care of surgical outpatients such as cancer patients, patients with staph infections, and patients with open wounds. These types of patient cases were different from the typical flus and common colds plaintiff was accustomed to handling on the urgent care floor," the complaint states.

Dissanayake says in her complaint that when she spoke to the Department Administrator, Jennifer Viquez, about her concerns, "Ms. Viquez was aghast at plaintiff's concerns and asked 'You don't know how to do simple dressing changes?' When plaintiff tried to explain that the job required more than simple dressing changes, Ms. Viquez said she would schedule Melissa Giles, RN to supervise and train plaintiff in the Nurse Clinic."

However, the complaint says that when Dissanayake reported to the Nurse Clinic for training, "Melissa Giles admitted that she was not trained for the Nurse Clinic and did not feel comfortable working on the floor either," asked that her name be left out of any discussions, and left early for the day.

Viquez rebuffed Dissanayake's next attempt to discuss the problem, according to the complaint. "Despite plaintiff's complaints regarding her lack of training, Kaiser repeatedly assigned her to work in the Nurse Clinic for the next four months. On a handful of occasions, plaintiff was assigned to work the Nurse Clinic alongside a supervisory RN. However, during these shifts, plaintiff and the supervisory RN did not work together. Both nurses were assigned their own separate patients to treat simultaneously," the complaint states.

In Jan. 2012, Dissanayake was called into a meeting and told that another nurse had reported that she failed to properly assess a patient the previous month, the complaint continues. In March, "plaintiff was issued a Corrective Action-Level III from Kaiser for alleged 'sub-standard performance' involving patient care," for the December incident, although "Level I" is normal for a first corrective action, according to the complaint.

In May, Dissanayake was given a "Last Chance Agreement" setting forth a six-month progress plan, the complaint states. In June she was put on "paid investigatory suspension," and in July she was fired, according to the complaint.

"At the time of plaintiff's termination, plaintiff had worked for defendant Kaiser for approximately 10 years. Prior to Nov. 23, 2011, the day that plaintiff voiced her concerns regarding her lack of training to work in the Nurse Clinic, plaintiff had never been disciplined, counseled, or given a poor performance review while employed by Kaiser."

Plaintiff is represented by Joel Baruch and Nikki Fermin of Irvine, Calif.

Patient Says Kaiser Surgeon Cut Wrist Nerve

Patient Says Kaiser Surgeon Cut Wrist Nerve
Courthouse News
May 15, 2013

PORTLAND, Ore. (CN) - A woman lost strength and function in her right thumb, palm, wrist, index finger and middle finger and has continuing severe pain and numbness because a Kaiser surgeon cut her median nerve while doing a carpal tunnel release, she claims in court.

The personal injury and medical malpractice suit alleges Dr. Annie Links did not use all the diagnostic imaging or other equipment at her disposal to correctly identify the nerve and avoid cutting it. Dr. Link and (nonparty) Dr. Sam Weirich later tried to fix the damage, but were unsuccessful, according to the complaint.

Linda Raab is suing in Multnomah County Circuit Court for $497,000.

Wednesday, May 15, 2013

Medical Board of California, led by Kaiser doctor Sharon Levine, has an inept, do-nothing approach to oversight

Legislature should pull plug on inept Medical Board of California
Legislators should sunset the medical board's do-nothing, know-nothing membership and executive director, and start over fresh.
By Michael Hiltzik
Los Angeles Times
April 26, 2013

The time has come to put the Medical Board of California out of its misery.

The board oversees the licensing of doctors and their discipline for misdeeds or incompetence. It also has jurisdiction over doctor-owned surgical clinics. Long ago the board acquired the reputation of being one of the least effective regulatory bodies in Sacramento.

But evidence has mounted that it's worse: It's a danger to the community.

Because of its ineffectiveness in a variety of spheres, patients have died. Dangerous doctors have been allowed to continue operating for years after their malpractice first surfaced; surgical clinics allowed to remain open for years after dangerous conditions there were identified.

Today the board is facing a sort of medical crisis of its own: It's up for legislative re-authorization under the state's sunset rules. The legislators in charge of that procedure are talking about rubbing out the current membership and their executive director as of Jan. 1, and starting over fresh.

"That's not an idle threat," says Sen. Curren Price (D-Los Angeles), who chairs the board's sunset review with Assemblyman Richard Gordon (D-Menlo Park).

Let's hope not.

The board has sat inertly by while its disciplinary program against incompetent and dangerous doctors falls to pieces. Its regulation of the 1,200 physician-owned outpatient surgical centers under its jurisdiction — settings where patients routinely undergo surgery under potentially life-threatening conditions — is almost nonexistent.

"People are dying at these outpatient centers and your paramount responsibility is to keep that from happening," Julie D'Angelo Fellmeth, a San Diego public interest lawyer who was appointed by the legislature to monitor the board's enforcement program in 2003-2005, lectured the members last week. One would think the board knew that, but the news seemed to strike the members like a bolt from the blue.

The board's enforcement record is dismal. Since 2007 California has typically ranked among the worst states in terms of serious disciplinary actions per 1,000 licensed physicians; the public interest group Public Citizen reported in 2011 that the board had failed to take action against more than 700 physicians whose privileges had been reduced or revoked by hospitals or other clinical settings, including 102 who had been found to pose an "immediate threat" to patients.

The board says statewide hiring freezes and furloughs have eroded its enforcement staff. But in 2010 it was given the authority to hire 18 investigators despite the freeze. It still hasn't filled the positions.

The real crime of the medical board's nonfeasance is that it's a fraud on the public. Today's board is largely the product of a major change in malpractice oversight in 1975. That's when the legislature enacted MICRA, the Medical Injury Compensation Reform Act, to address a largely fabricated malpractice insurance "crisis." MICRA limited payouts for malpractice judgments so severely that it effectively made malpractice lawsuits extinct in California.

In return for the elimination of patient lawsuits as a check on dangerous doctors, the medical profession agreed to accept tougher disciplinary standards and procedures from regulators. After a few more legislative tweaks, the medical board was born.

But the promise of tougher enforcement never was fulfilled. The legislature and governor's office deserve plenty of blame for that. Although the board is funded entirely from license fees paid by doctors, not from taxpayer revenue, it wasn't exempted from the layoffs and furloughs imposed by the Schwarzenegger administration as budget-cutting measures. Meanwhile, medical lobbies such as the California Medical Assn. have opposed efforts to increase license fees to adequately fund the board's activities.

The board, which by law comprises eight physicians and seven "public" members, is unpaid except for expenses and per diems while on official business. (Four seats subject to appointment by Gov. Jerry Brown are currently vacant.) Californians get what they pay for: The members don't seem to have any conception of the breadth of their authority, and precious little inclination to use it.

That was made evident by board President Sharon Levine's appearance on March 11 before the sunset committee headed by Price and Gordon. Levine, an executive at Kaiser Permanente, made some remarkable assertions in her testimony. For example, she excused the board's terrible record on discipline by explaining that it must wait for a complaint from a patient or other outside source before opening an investigation of a doctor.

In deference to Levine's tenure on the medical board, which started in 2009 (she became president last year), I'm inclined to take a charitable view of this statement. So I'll merely call it the single most ignorant description by a government regulator of his or her authority I've heard in 30 years.

The fact is that the board has all the power it needs to act on its own, with or without a complaint; indeed, such proactivity is the hallmark of effective state medical boards. In a blistering letter following the hearing, Price and Gordon cited the specific provision of California law that "unequivocally authorizes" the board to initiate its own investigations.

More blunders came when Levine addressed the board's oversight of outpatient surgery centers owned by physicians, which came under its jurisdiction as the result of a state court ruling in 2007.

The board has outsourced oversight of these clinics, which perform an increasing number of such serious procedures as weight-loss and cosmetic surgeries, to four private, nonprofit accreditation organizations. These accreditors are not government regulators. They don't have subpoena power or the authority to close down a dangerous clinic, and they don't have consistent standards or procedures for granting accreditation.

Tuesday, May 14, 2013

Is $2 million paid to a doctor in Arkansas really making any difference in the length of Jalal Afshar's life? I suspect not.

Two months ago I wrote about this case here. I am not at all a fan of Kaiser Permanente, and I know that Kaiser turns a profit by failing to provide life-saving treatments. It achieves its billions of yearly profit through "treatment guidelines" that cause practitioners to fail to appropriately diagnose and treat illnesses.

But I am suspicious of this particular case. I suspect that some charlatan in Arkansas offered hope to Mr. Afshar in exchange for $2 million dollars.

I did a little research and found this information on the American Cancer Society website:

"Infection with HIV is the only clear-cut risk factor for CD. Castleman disease is much more common in people with this infection, particularly in those who have developed the acquired immunodeficiency syndrome (AIDS)...The cause of Castleman disease (CD) is not known for sure, but doctors suspect it is related to problems with the way a person's immune system is working...A virus seems to be involved in at least some cases of CD. Human herpes virus type 8(HHV-8) is found in the lymph node B cells of many people who are HIV-positive and have multicentric CD. This virus is also known as Kaposi sarcoma-related herpes virus(KSHV) because it has also been found in people with Kaposi sarcoma (a rare type of cancer). In fact, some people with CD also have Kaposi sarcoma."

I suspect that Mr. Afshar will live exactly as long with his $2 million Arkansas treatment as he would have lived without it.

Man Files $2M Lawsuit, Says Kaiser Refused To Cover Life-Saving Treatment
May 13, 2013

A Pasadena man is suing Kaiser Permanente for $2 million alleging breach of contract and unfair business practices after he says they gave up on him and refused to provide or cover the cost of life-saving care.

Kaiser doctors diagnosed 58-year-old Jalal Afshar with Castleman disease, a rare and often deadly disease that targets the lymph nodes.

...A former Kaiser employee, Afshar said the non-profit medical group initially granted his request to see an out-of-network specialist in Arkansas.

“It was like, you know, finding your life again,” he said.

The lawsuit alleges that Kaiser ultimately declined to pay for his care, claiming that services were available within his existing plan to treat the disease.

“Kaiser, in bad faith, unreasonably denied medical care that Jalal needed to save his life,” said his attorney, Scott Glovsky.

Afshar continued his treatment out-of-network. Six months later, he is on the way to recovery, but owes $2 million in health care costs.

“He would be dead for sure because they had given up on him,” said his wife, Maryam.

[Maura Larkins comment: I have not seen any evidence that Mr. Afshar was given a prognosis of six months to live. Kaiser simply said it didn't have a treatment to offer him. This doesn't mean he was expected to die right away. It only means that Kaiser was not planning to interfere with the course of nature.]

“We should care about people more about their lives than making money,” said Afshar.

“When I was there, they were clearing a couple of billion dollars of pure profit every quarter,” he said.

Kaiser declined an interview, but released a statement Monday.

The statement reads in part:

“We dispute the allegations included in the lawsuit…We did not give up on our member. Respecting patient privacy, we cannot provide details about the treatment options which were made available and being pursued…We will fully address the lawsuit in the proper judicial forum.”

Thursday, May 9, 2013

"Horrific" consequences of Kaiser Permanente's failure to properly monitor bladder patient during and after surgery

See comparison of Kaiser urology department with other medical centers.

Patient Blames Kaiser for 'Horrific Events'
Courthouse News Service
May 08, 2013

DENVER (CN) - Two Kaiser doctors and a nurse practitioner overlooked an important lab test for a patient about to undergo bladder surgery, and both doctors made mistakes during the surgery, resulting in a "cascade of horrifying complications," the patient says in a complaint filed in Denver District Court.

Urologist Mina Shabnam Lee diagnosed 71-year-old Josephine Jansen with a mass in her bladder in April of 2011 and recommended a surgical procedure called a "bladder transurethral resection neoplasm," according to Jansen's complaint.

A nurse practitioner, Andrea Anderson, performed a pre-operative examination and Dr. Lee ordered lab work, the complaint states. Nonetheless, neither they nor the anesthesiologist, Thomas Arthur Gettelman, ordered a test of Jansen's sodium level, according to the complaint. "Either defendant Anderson or defendant Lee or defendant Gettelman could have easily ordered a simple blood test which would have included a panel of electrolytes such as sodium. The ordering of a sodium lab value is extremely easy, and non harmful to the patient, and would only take a matter of minutes to obtain. However, the priorities of each defendant were such as not to obtain this test. Moreover at least one of the drugs that the plaintiff was taking, Hydrochlorothiazide, (HCTZ) is a diuretic and has the effect of lowering some electrolyte lab values," Jansen says in her complaint.

"During the surgical procedure performed by defendant Lee, various and serious complications occurred," the complaint continues, including a ruptured bladder, and aspiration of stomach contents into Jansen's airway because Dr. Gettelman was "negligent in the performance of his duties as an anesthesiologist during the operative period," according to the complaint.

The complaint states that Dr. Lee, failed "to adequately consider the effects of fluid absorption as a result of the surgical misadventure."

"Defendant's superficial approach to this patient - particularly in having no understanding of her sodium prior to surgery - set into motion the cascade of horrifying complications which followed the surgery. And her operative and post operative mismanagement (especially in not ordering serum sodium immediately post surgery) caused further and increased harm to plaintiff," the complaint states.

"Following the surgery the plaintiff sustained severe and irreparable injury. She went into shock caused by abnormal and an almost deadly level of sodium, plaintiff's bladder was ruptured during the surgery and shortly following the surgery it was determined that plaintiff had developed severe hyponatremia which was complicated by acute cardiac decompression due to the stress induced cardiomyopathy, respiratory failure, renal failure requiring dialysis, prolonged ventilation, and significant neurological injuries. This cascade of horrific events including multi organ failure, were caused by the negligence of the defendants," Jansen's complaint says.

"Much of her damages are permanent in nature and her life has been forever changed," the complaint states. "The plaintiff has incurred substantial economic losses including the loss of her career."

Plaintiff is represented by John Astuno, Jr. of Denver.

Wednesday, May 8, 2013

Wells Fargo will pay $105m to settle OC fraud case regarding Medical Capital Holdings (MedCap)

Wells Fargo will pay $105m to settle OC fraud case
By The Associated Press
May 3, 2013

SANTA ANA, Calif. — Wells Fargo Bank will pay $105 million to settle a lawsuit that held it liable for an Orange County fraud scheme that cost investors as much as $1 billion.

The Orange County Register says the settlement was filed Tuesday.

Wells and Bank of New York Mellon were trustees of investor funds for Tustin-based Medical Capital Holdings. MedCap claimed to sell safe investments but authorities say it gambled on risky ventures such as unlicensed hospitals.

Regulators closed the firm in 2009. Its president pleaded guilty to wire fraud.

The investor lawsuit claimed Wells Fargo and Mellon ignored warning signs that MedCap was a fraud. The banks argued that they followed the terms of their contracts.

Mellon settled its case for $114 million.

Has Kaiser achieved its position through illegal tactics such as mislabeling employees to cut costs?

Kaiser avoided paying overtime wages and giving breaks by falsely labeling employees as managers, violating the California Labor Code.

Kaiser Uses Title Alone for Tax Status, Class Says
Courthouse News Service
May 07, 2013

SAN DIEGO, Calif. (CN) - Certain Kaiser Foundation Hospital Inc. employees were paid an exempt-status salary, but performed non-exempt tasks, according to a San Diego Superior Court class action lawsuit.

Lead plaintiff Adam Hardesty was employed at a San Diego County Kaiser hospital as a "project manager" from August 2012 to February 2013.

Hardesty states in his complaint that despite the title, employees had little to no authority, never served in a supervisory role and were otherwise "engaged in a type of work that required no exercise of independent judgment or discretion as to any matter of significance."

Instead, Kaiser project managers performed a "finite" set of non-exempt tasks that included transcribing written and electronic prescriptions, completing patient profile entries and notes, sending requests to doctors for medication refills and were even expected to troubleshoot the pharmacy computer system, all on top of "daily debriefing" conference calls.

"As a matter of company policy, practice and procedure, Kaiser unlawfully, unfairly and/or deceptively classified every project manager as exempt based on job title alone, failed to pay the required overtime compensation and otherwise failed to comply with all labor laws with respect to these project managers," the complaint states.

Hardesty alleges Kaiser operates the scheme to save money and be more competitive in the health care industry. "To successfully compete against the other health care service providers, Kaiser substantially reduced its labor costs by placing the burden of overtime work on a smaller number of salaried employees that Kaiser classified as exempt from overtime wages and other related benefits . . . the requirement to pay overtime wages extends beyond the benefits individual workers receive because overtime wages discourage employers from concentrating work in a few overburdened hands and encourages employers to instead hire additional employees," the complaint states.

In addition, the complaint alleges Kaiser did not provide the class compensation for missed meal and rest breaks, and did not provide accurate and itemized wage statements showing gross and net wages, hourly rates for regular and overtime hours or the corresponding hours worked at each hourly rate.

Hardesty is suing for violations of California's Unfair Competition Laws under California's Business and Professions code. He wants the court to enjoin Kaiser from continuing its practice of labeling employees as exempt by title only, to order Kaiser to correctly calculate and pay all wages due, and to disgorge "ill-gotten gains into a fluid fund for restitution" according to proof.

Norman B. Blumenthal, Kyle R. Nordrehaug and Aparajit Bhowmik, of La Jolla, Calif., represent the plaintiff.