Hospital workers strike Temple University and defeat "gag" rule

Nurses and other professional and technical employees of Temple University Hospital in Philadelphia won a month-long strike in which management tried to impose a "gag" rule to prohibit them from speaking publicly about how staff shortages affect patient care. Marty Harrison, a staff nurse and board member of the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP), wrote about the union victory for the current issue of Labor Notes. She explains that the "gag" rule was "an idea incompatible with the legal obligation of health care workers to serve as advocates for their patients." Management's demand for the "gag" rule and other concessions helped PASNAP members maintain solidarity and draw support from the community, the broader labor movement, and political leaders. In the face of demands that would have busted the union, Harrison says that, "Members have been tempered in the fire of battle and are feeling a new unity and strength, having learned firsthand the power of collective action and solidarity." She notes that 94% of members honored the picket lines for 28 days. PASNAP members ratified a new contract by a vote of 1,045 to 30.  Thank you PASNAP for taking a stand on protecting patient safety and your right to speak up on our behalf.  Still, it is shameful that our country does not have a federal law that would prohibit all employers from imposing "gag" rules of any sort.

Defense firm warns federal contractors about FCA amendments in Healthcare Law

The law firm of Gibson Dunn represents companies when they are accused of defrauding the government. They have now posted to their web page an article that warns federal contractors about the new liabilities they face as a result of the newly signed Patient Protection and Affordable Care Act (PPACA), the new Healthcare Law. My colleague, Lindsey Williams (Advocacy Director of the National Whistleblowers Center), posted an entry here about how the Senate bill included improvements to the False Claims Act (FCA). She explained how the amendments undo the effect of restrictive court decisions that made it harder for whistleblowers and the government to recover damages from fraudsters. The Gibson Dunn article bemoans how this congressional act will "reverse the recent judicial trend toward limiting FCA qui tam actions and will likely increase both the number and type of whistleblower suits." On this, we can agree.

Scientists raise concerns about radiation risk of CT scans

Several media sources are reporting on concerns raised by scientists about the radiation dangers of CT scans. CT scans delivers the radiation exposure of about 400 chest x-rays. Their popularity for colon cancer screening and other diagnoses has increased the average American's lifetime radiation exposure seven fold since 1980.  During that time, the number of CT scans performed in the U.S. has increased from 3 million to 70 million. The scientists say that the Food and Drug Administration (FDA) has failed to appreciate the risk of increasing cancer through radiation exposure.

On Tuesday, the FDA is convening a public meeting about the risks of America's increased reliance on CT scans. A group of FDA whistleblowers plan to use the event to publicize concerns they say FDA managers have overlooked. The New York Times reports that they have received internal FDA documents showing that the FDA approved General Electric's application to to use CT scans to screen for colon cancer -- over repeated objections of FDA scientists. It reports that Dr. Julian Nicholas said that approving the application could “expose a number of Americans to a risk of radiation that is unwarranted and may lead to instances of solid organ abdominal cancer.”

In an AP story run by the Washington Post and Los Angeles Times reports that Dr. Nicholas lost his FDA job after he raised this concern. "Scientific and regulatory review process for medical devices was being distorted by managers who were not following the laws," Nicholas told his superiors before his job was eliminated.

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RCG dialysis company pilfered $19.4 million

A federal judge in Tennessee has found that a dialysis company bilked the federal government out of $19.4 million. U.S. District Judge William J. Haynes Jr. issued the order against Renal Care Group, Renal Care Group Supply Co. and Fresenius Medical Care Holdings Inc. The order concluded that the companies ran a single operation and falsely claimed to be separate in a scheme that increased their Medicare billings by 30%. The judge held that the company was unjustly enriched, and order it to refund the $19.4 million to the government. The judge did not consider the government's other claims, and did not consider the provisions in the FCA requiring a civil penalty of at least $5,000 per false claim, and treble damages. According to Business Week, a groups of whistleblowers originated this case in St. Louis. Either side can appeal between now and May 21.

Florida nurses rally for improved staffing and whistleblower protections

Florida nurses rallied at their state capitol this week to call for minimum staffing ratios and whistleblower protection. The Miami Herald was there to report on the rally. The nurses cite research showing that improving nurse-to-patient ratios saves lives and costs less than alternative safety procedures that would cost more. The bill would also provide employee protection for nurses who refuse unsafe assignments or file complaints against the hospital or clinic. These protections would drastically improve their right of free speech within the workplace. The march was sponsored by the National Nurses Organizing Committee which is organizing nurses in Arizona, California, Florida, Illinois, Maine, Missouri, Nevada, Ohio, Pennsylvania and Texas.

Intern Quinn McCall contributed to this blog entry.

Whistleblowing nurse Anne Mitchell acquitted in Texas

A jury in Andrews, Texas, has acquitted an experienced nurse of charges that she misused official information when she sent an anonymous letter to a state medical board to complain about a doctor's malpractice.  Anne Mitchell had been a nurse at the Winkler County Memorial Hospital for 25 years. In April 2008, Dr. Rolando G. Arafiles Jr. arrived. At the trial, other nurses confirmed that Mitchell had good grounds to be concerned about Dr. Arafiles' malpractice, and the hospital administration had not done enough. The New York Times reports that the jury foreman questioned why Mitchell had ever been arrested. “We just didn’t see the wrongdoing of sending the file numbers in, since she’s a nurse,” Harley Tyler, a high school custodian, told the paper. Mrs. Mitchell, who did not testify in her defense, said after the verdict that she had been trying only to protect her patients. “It’s a duty to every nurse to take care of patients,” she said, after wiping away tears of relief. Rebecca Patton, president of the American Nurses Association, told the Times that the verdict is “a resounding win on behalf of patient safety.” Mitchell's lawyer, John H. Cook IV, said “there was great damage done in this case, and this [acquittal] does not make them whole.” Cook has now filed a wrongful discharge case on behalf of Mitchell and her co-worker. This case is a good example of why whistleblowers need access to jury trials.  The jury could tell when the nurse was acting properly in reporting medical malpractice, even when the sheriff, the prosecutor and the judge could not.

A beautiful quote on employer pretexts

My friend Paul Taylor of the Truckers Justice Center shares this beautiful quote that I will be using in briefs for my clients:

"Today’s employers, even those with only a scintilla of sophistication, will neither admit discriminatory or retaliatory intent, nor leave a well-developed trail demonstrating it. ... It is a simple task for employers to concoct plausible reasons for virtually any adverse employment action ranging from failure to hire to discharge."

Raymond v. U.S.A. Healthcare Center-Fort Dodge, LLC, 468 F. Supp.2d 1047, 1054 (N.D. Iowa 2006).

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False Claims Act Whistleblower Puts a Stop to Abuse at PA Psychiatric Hospital

Yesterday, I blogged about a pending multi-million dollar False Claims Act (FCA) lawsuit agains Pharm giant Wyeth. Today's news brings another example of how the FCA can be used to bring gross misconduct to light. This case, involving a western Pennsylvania psychiatric institution has settled for far less money than many of the more highly publicized FCA cases, but the shocking allegations are what really caught my attention.


The whistleblower in this case, Dr. Stefan Kruszewski, was a psychiatrist reviewing records of the Southwood Psychiatric Hospital. Southwood is a private facility that houses over 100 juvenile boys who are wards of the state. For the care of these kids, Southwood is paid through state and federal contracts. Dr. Kruszewski reported that Southwood, in order to inflate their government payments, "...held juveniles who did not require hospitalization, prescribed and administered unnecessary medication to increase government reimbursements, and billed the government for care that was not provided." (Pittsburgh Tribune Review)


The Department of Justice has settled this lawsuit and Southwood is paying $150,000 and is being forced to make necessary changes to raise its standard of care and clean up its act. Under the settlement, Southwood is not admitting any wrongdoing, but it is unthinkable that a hospital would take advantage of, indeed abuse,  vulnerable young children in order to make a quick buck off of the taxpayers. The story also shows how valuable the False Claims Act can be in bringing to light all kinds of misconduct when government money is involved. Congress should continue to work to pass current legislation which is designed to strengthen the FCA.

U.S. Government and 16 States Join False Claims Act Lawsuit Against Pharm Co. Wyeth

The United States Government, along with the governments of 15 states and the District of Columbia, have joined with two whistleblowers who allege that drug manufacturer Wyeth bilked US taxpayers out of hundreds of millions of dollars. As reported in the Wall Street Journal and the FierceHealthcare website, Wyeth is accused of overcharging Medicare and Medicaid programs nationwide for purchases of it's acid-reflux drug Protonix. Under federal law, drug companies are required to offer prescriptions to federal aid programs at the lowest possible price. Wyeth, however, the suit alleges, was offering Protonix at a 90% discount to private hospitals, while charging the federal government much higher rates.

 

The lawsuit was filed under the False Claims Act, which has its roots in the civil war era, and remains  the United States' most powerful tool for rooting out fraudulent government contracts. President Obama's administration has recently expressed its support for strengthening the law, and legislation to do so is currently pending in Congress.

Whistleblowers Help DOJ Recover $1 Billion in Government Contractor Fraud Scams in FY 2008

Did you know that whistleblowers reporting under the False Claims Act have accounted for over $1 Billion in recovered federal and state taxpayer dollars this (fiscal) year alone?  This Marketwatch.com article details the biggest fraud recoveries in '08, including hundreds of millions of dollars from companies such as Amerigroup, Merck, BechtelCVS, and Pratt & Whitney


Despite these results, the False Claims Act (a civil war-era law that was last amended in 1986) is in need of some retooling. Senators Grassley and Leahy are pushing an amendment package (Bill # S. 2041) that would close the loopholes created by destructive Supreme Court decisions, such as Allison Engine Co. v. U.S. . this legislation should be enacted immediately. Further, because we know that the DOJ is letting hundreds of FCA cases languish without investigation, the DOJ needs to hire more civil fraud attorneys and focus more resources on ferreting out government contractor fraud.