Guttman Buschner LLP

Staff

By

Women in Law and Leadership Symposium

INSPIRE FUTURE GENERATIONS OF WOMEN LEADERS

Miami University’s Sue J. Henry Center for Pre-Law Education invites you to its second Women in Law and Leadership Symposium at the Cincinnati Museum Center.

Join us on Friday, April 21, 2023 to celebrate and explore women’s progress in the legal field: advocating for lifestyle balance; successfully navigating conflict and bias in negotiation; women in the courtroom; bridging generational differences; and allyship best practices.

Hear from leaders in the legal field as you network with Miamians working in government and law. Our keynote speaker is the Honorable Nancy Gertner, US D. Mass. (Ret.), judge, advocate, and author of several books including In Defense of Women: Memoirs of an Unrepentant Advocate.

When: April 21, 2023, 8 a.m. – 5 p.m ET
Where: Cincinnati Museum Center, 1301 Western Ave., Cincinnati, OH 45203
Cost is $100 for the all-day event for working professionals (Free for Miami students and $50 for law students) and includes networking breakfast and keynote lunch.
CLE: Approved for 5 Hours Ohio CLE
To register visit https://securelb.imodules.com/s/916/22/Interior.aspx?sid=916&gid=1&pgid=19935&cid=38884&amount=0&bledit=0&dids=68

Full symposium schedule available at https://www.miamialum.org/s/916/22/Interior.aspx?pgid=19938&gid=1&cid=38898

By

Whistleblowers accuse Erlanger of illegal billing for concurrent surgeries that left patients unsupervised

A federal whistleblower lawsuit filed against Erlanger Health System accuses hospital leaders of illegal billing practices by knowingly overlapping surgeries and allowing trainees to operate on patients without physician supervision, among other patient safety and compliance issues.

The complaint, brought under the federal False Claims Act and Tennessee Medicaid False Claims Act and filed in April 2021 in U.S. District Court, alleges surgeons who practice at Erlanger violated state and federal law by regularly billing for two or three different surgeries in the same timeframe while leaving residents and interns alone to complete operations without proper oversight or patient consent.

Medicare and Tennessee’s Medicaid program, TennCare, require a supervising or teaching physician to be present for the “key and critical” portions of each surgery in order to bill for the procedure and receive payment.

As a teaching hospital, Erlanger is supposed to use young doctors in training, known as residents, during surgeries. It’s up to the teaching physicians to decide what aspects of the surgery are key and critical because it can vary significantly depending on the individual patient, procedure or the skills of the resident.

“The surgeries were often scheduled to start within fifteen to thirty minutes of one another and, in the case of three overlapping bookings, two or more surgeries frequently occurred entirely within the duration of a third,” the suit alleges. “This routine practice meant unwitting patients were subjected to longer-than-necessary operating-room times and charges, often under anesthesia, often in the care of trainees, and nearly always without the backup of a properly qualified surgeon, despite legal requirements.”

The plaintiffs — Erlanger’s former chief information officer, Dr. Stephen Adams, and orthopedic surgeons Dr. Julie Adams and Dr. Scott Steinmann — say in the suit that they raised those concerns about patient safety and compliance with Erlanger leadership, which ultimately cost them their jobs.

“Erlanger deliberately turned a blind eye to the problems, deciding, instead, to focus negative attention upon those who dared to raise such issues,” the suit alleges.

The three are also seeking payment for damages they claim came as part of a “malicious and unlawful campaign of retaliation” under former Erlanger CEO Dr. Will Jackson, according to the suit.

The False Claims Act is a longstanding statute that allows individuals with non-public information to bring a suit in the name of the government to allege false statements or fraudulent representations have been used to secure government payment.

The law offers financial incentives for those suits as a way to safeguard public funds spent on critical services, such as health care, military support, infrastructure and disaster relief.

If successful, the whistleblower — also known as the relator — typically receives a portion of the recovery ranging between 15% and 30%, according to the U.S. Department of Justice website.

By law, those suits must be filed under seal to afford the government an opportunity to investigate the allegations and decide whether to take the case forward — which occurs in about 20% of cases filed. If the government declines to intervene, the whistleblowers have the option to proceed themselves.

Erlanger spokesperson Blaine Kelley said in an emailed statement that the state of Tennessee has already declined to intervene in the case. Erlanger officials are still awaiting confirmation of the U.S. Attorney’s office’s decision, she said.

“Erlanger has worked with and otherwise fully cooperated with the government’s review of the claims as they relate to Erlanger over the past 18 months,” Kelley wrote. “Erlanger disputes the merit of the allegations.”

She added, “No instances of patient harm relating to these allegations have been identified.”

Reuben Guttman, an attorney representing the whistleblowers, said his clients are unable to discuss the case.

“The three renowned physicians and professors of medicine have alleged issues of significant public importance, and they look forward to a full airing of their concerns in court,” Guttman said by email. “They hope that whatever comes out of this litigation will ultimately lead to better medical care for the vulnerable and the voiceless.”

Dr. Stephen Adams is board-certified in both family medicine and medical informatics and is a professor in the department of family medicine at Erlanger’s academic affiliate, the University of Tennessee College of Medicine Chattanooga, where he has worked since 1997, according to the suit.

Dr. Julie Adams and her husband, Steinmann, are leaders in their field and were recruited in 2019 to join the college of medicine faculty and Erlanger. At the time, Steinmann was appointed chairman of the Department of Orthopedic Surgery. He is now an emeritus professor of orthopedics at the Mayo Clinic College of Medicine.

In fiscal year 2022, whistleblowers filed 652 False Claims Act suits, with health care fraud representing the most common type of cases, according to the Department of Justice.

In February 2022, Massachusetts General Hospital — the renowned teaching hospital affiliated with Harvard — agreed to pay $14.6 million to settle a federal lawsuit alleging it fraudulently billed government insurers by overlapping surgeries as supervising surgeons worked in other operating rooms, according to a report in the Boston Globe. Just last month, the University of Pittsburgh Medical Center, University of Pittsburgh Physicians and one of the group’s leading surgeons agreed to pay $8.5 million to the United States to resolve claims over improper billing for concurrent surgeries.

Source: By Elizabeth Fite, Chattanooga Times Free Press.
Contact Elizabeth Fite at efite@timesfreepress.com or 423-757-6673.

Article available on-line at https://www.timesfreepress.com/news/2023/mar/27/whistleblowers-accuse-erlanger-illegal-billing-tfp/

By

CLE: Understanding Diversity, Equity and Inclusion: How the Law Created Inequity

The phrase “Diversity, Equity & Inclusion” words often heard and even debated – encapsulates efforts to equalize opportunity. Understanding the need or purpose for DEI efforts requires an appreciation for how the law itself embedded inequity.

This one-hour CLE course class will cover the myriad of laws and judicial pronouncements that have embedded inequity in our culture and economy. From the constitution to seminal cases – some taught at a superficial level at grade school and others not taught at all – this CLE program is designed to provide insight into current claims of inequity and a seemingly triaged effort to make corrections.

This course is a must for firm administrators, labor and employment lawyers, and civil rights litigators.

Live Webinar: Wednesday, April 12, 2023, 1:00PM – 2:00PM Eastern Time (EDT).

To learn more or register, visit https://www.nacle.com/CLE/Courses/Understanding-Diversity-Equity-and-Inclusion-How-the-Law-Created-Inequity-2278.

By

CLE: Demand Letters and Pre-Complaint Settlement

Program Summary

On Demand: Civil litigation is no more than a process to resolve disputes. Most cases never go to trial because the process is designed to provide parties with sufficient information about their risks before a decision maker such that they reach their own resolution.

Every now and then, there are cases that can be resolved absent the cost and time incumbent in the civil litigation process.

This CLE program will outline the types of cases susceptible to pre-complaint resolution and the various methods that may be employed to bring the parties to a point where they can resolve their disputes.

Key topics to be discussed:

  • The various uses purposes for pre-complaint dialogue
  • The purpose, tone, and form of a demand letter
  • How to keep the dialogue moving in the right direction
  • The relevant evidentiary and ethical rules

Speakers

Reuben Guttman | Guttman, Buschner and Brooks PLLC

Reuben Guttman is a founding member of Guttman, Buschner and Brooks PLLC. His practice involves complex litigation and class actions. He has represented clients in claims brought under the Federal False Claims Act, securities laws, the Price Anderson Act, Department of Energy statutes and regulations, the Worker Adjustment and Retraining Notification Act (WARN), Racketeer Influenced and Corrupt Organizations Act (RICO) and various employment discrimination, labor and environmental statutes. He has also tried and/or litigated claims involving fraud, breach of fiduciary duty, antitrust, business interference and other common law torts.

The International Business Times has called Mr. Guttman “one of the world’s most prominent whistleblower attorneys.” He has served as counsel in some of the largest recoveries under the False Claims Act. Mr. Guttman served as lead counsel in a series of cases resulting in the recovery of more than $30 million under the Federal Fair Labor Standards Act. Mr. Guttman is the author and/or editor of numerous articles, book chapters, and technical publications.

In addition to his writings, Mr. Guttman has testified before committees of the United States House of Representatives and the United States Senate on the Asbestos Hazard Emergency Response Act (AHERA). Mr. Guttman earned his law degree at Emory University School of Law, where he has been a Senior Fellow and Adjunct Professor at the Emory University School of Law Center for Advocacy and Dispute Resolution and has been a Team Leader for the school’s Trial Techniques Program. He is a faculty member of the National Institute for Trial Advocacy and Fellow of the American Bar Foundation.

He is currently a Professional Lecturer at the American University School of Public Affairs where he teaches Equal Protection/Constitutional Law. He is co-author of the text Pretrial Advocacy (NITA/Wolters-Kluwer 2021 with Professor JC Lore) and he has published more than 100 articles.

Agenda

I. The various uses purposes for pre-complaint dialogue

II. The purpose, tone, and form of a demand letter

III. How to keep the dialogue moving in the right direction

IV. The relevant evidentiary and ethical rules

To Register or for more information visit: https://mylawcle.com/products/demand-letters-and-pre-complaint-settlement/
Closed-captioning available.

By

UPMC, head of cardiothoracic surgery will pay $8.5M to feds to settle lawsuit

“Patients don’t know their doctors are serving two masters.”

UPMC, a renowned cardiothoracic surgeon there and a physicians group will pay the federal government $8.5 million to settle a lawsuit accusing them of knowingly submitting hundreds of false claims to Medicare, failing to follow medical standards for surgery and knowingly placing patients at risk.

he U.S. Attorney’s Office filed a lawsuit against UPMC, Dr. James Luketich and University of Pittsburgh Physicians in September 2021 alleging Luketich was regularly scheduling multiple complex surgeries at the same time, forcing him to move between operating rooms and sometimes hospitals, while requiring patients to stay under additional hours of anesthesia.

In one case, a patient lost parts of a hand and another lost a lower leg as a result, the government said.

The U.S. Attorney’s Office said the settlement will resolve the claims in the case.

Paul Wood, a UPMC spokesman, said at issue in the complaint was compliance with Centers for Medicare and Medicaid Services teaching physician regulations and related billing guidance, as well as UPMC’s internal surgical policies.

“While UPMC continues to believe Dr. Luketich’s surgical practice complies with CMS’s requirements, it has agreed to pay $8.5 million to the government to avoid the distraction and expense of further litigation,” Wood said.

In the future, he continued, UPMC will be permitted to seek clarity from Medicare on how it should bill for complex procedures.

Efrem Grail, the attorney representing Luketich, said he and his client are pleased the settlement ends the government’s case.

“Medical schools and their hospitals have sought clarity about the billing regulation for teaching physicians at issue here for years, and the United States has never provided it,” Grail said. “This settlement provides a mechanism we hope will lead to authoritative guidance so that universally respected surgeons like Dr. Luketich can return their focus to training young doctors to save lives without having to put up with baseless claims of fraud.”

In addition to the $8.5 million payment, the defendants are required to create a corrective action plan for Luketich and submit to a yearlong, third-party audit of Luketich’s billings to Medicare for physician services.

The initial lawsuit was filed following allegations brought by former UPMC surgeon Dr. Jonathan D’Cunha, who worked for the health system from 2012 to 2019 and served as the surgical director of lung transplantation.

D’Cunha, who now practices in Arizona, filed a federal whistleblower complaint in April 2019.

He also is involved in an ongoing civil dispute in Allegheny County Common Pleas Court regarding Luketich’s actions.

Bernadette Fedorka and her husband are suing Luketich and UPMC alleging that she received improper care because of the ongoing practices at play in the federal complaint. Luketich was not her treating physician and did not care for her.

In that civil case, UPMC and Luketich filed a motion for a preliminary injunction seeking to prohibit the parties from using a 2018 secretly obtained recording between Luketich and his doctor, who had been for years treating him with suboxone.

Judge Philip Ignelzi held several days of contentious hearings on the matter last year, and the parties filed briefs outlining their positions on the injunction last week.

A ruling is expected on the injunction request soon.

As part of the federal complaint, the U.S. Attorney’s Office said UPMC “regularly sacrificed patient health in order to increase surgical volume,” while violating Medicare rules.

Those rules require teaching hospitals to have a teaching physician in the operating room during “critical portions” of a procedure and “immediately available” throughout the procedure.

“This is an important settlement and a just conclusion to the United States’ investigation into Dr. Luketich’s surgical and billing practices, and UPMC and UPP’s acceptance of those practices,” said Acting U.S. Attorney Troy Rivetti. “This office is committed to safeguarding the Medicare and Medicaid programs, and to protecting those programs’ beneficiaries. No medical provider — however renowned — is excepted from scrutiny or above the law.”

There have been at least three other cases nationally in which large hospital systems have settled similar billing allegations over a lack of oversight in the operating room and simultaneous surgical procedures.

Massachusetts General Hospital in Boston paid $14.6 million last year; St. Joseph’s Hospital in Phoenix paid $10 million in 2021; and Lenox Hill Hospital in New York City paid $12.3 million in a settlement in 2019.

Attorney Reuben Guttman, who was counsel in the New York and Boston cases, called the conduct involved in these types of claims “egregious,” saying the surgeons involved are taking advantage of their patients.

“These practices at teaching hospitals across the country are pervasive, and it’s a real problem,” Guttman said. “Patients don’t know their doctors are serving two masters.”

Although the financial settlement in the UPMC case is small in comparison to the hospital system’s $24 billion in annual revenue, Guttman said it is still important.

“The money is going to be inconsequential. But it’s more you’re changing the standard of care,” he said. “Every single settlement like this is important because it sheds light on a practice that is pervasive.”

Because of this settlement, Guttman said plaintiffs in any medical malpractice cases against UPMC going forward will be able to ask what other cases their doctors were working on at the same time.

“It’s going to expose UPMC to a lot of inquiry in medical malpractice cases, and that will drive change,” he said.

Guttman suggested UPMC’s insurance carriers also will impose new requirements on the health system to limit that risk.

The practice of hosting multiple procedures at the same time, Guttman said, is another example of money driving medical care, noting that fraud like this ends up with Medicare and Medicaid being cheated and patients receiving less-favorable outcomes.

Guttman suspects there are similar cases in the pipeline. He said every time a case such as this one settles, physicians working in a setting where fraud is occurring will feel emboldened to step forward as a whistleblower.

“UPMC can’t just put this in a box and say this is done,” Guttman said. “UPMC is misrepresenting the settlement as saying it’s a billing problem. It’s a patient care problem that they’ve billed for.”

Source: Paul Reed, Tribune-Review. Article available at https://triblive.com/news/health-now/upmc-head-of-cardiothoracic-surgery-will-pay-8-5m-to-feds-to-settle-lawsuit/.