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Whistleblower settlement opens new avenue for Rosner plaintiffs

Plaintiffs attorney Wade Byrd questions Dr. Michael J. Rosner during a medical malpractice case in October 2014.

A $118 million payment by Adventist Health Systems to settle whistleblower claims that it paid kickbacks for referrals, encouraged overutilization and filed false insurance claims has opened a new line of attack for plaintiffs suing a Park Ridge surgeon for what they described as unnecessary procedures.

Adventist, the Orlando-based owner of Park Ridge Health, agreed in documents filed in federal court in Asheville on Sept. 15 to pay $115 million to the U.S. Justice Department and $3 million to four states to settle charges that its hospitals paid kickbacks to physicians for referrals, filed false or inflated claims with Medicare, Medicaid and other federal insurance programs and paid “excessive bonuses” based on hospital revenue and overutilization.
The settlement came in a whistleblower lawsuit first brought in December 2012 by three Park Ridge employees who, according to their lawyer, had for years had flagged the practices and tried to persuade their bosses to stop them. The employees — Michael Payne, a risk manager who had worked there for nine years; Melissa Church, executive director of physician services and an employee for 15 years; and Gloria Pryor, a compliance officer who had worked at Park Ridge for 19 years —filed the complaint under the federal False Claims Act, which protects whistleblowers and rewards those whose complaint results in the recovery of government money. In 2013, Sherry Dorsey, a corporate vice president who joined Adventist in 2012, filed a second whistleblower lawsuit.
In a statement Adventist said that the settlement “fully resolves issues AHS voluntarily disclosed to the United States government in early 2013 involving its implementation of certain physician employment compensation models and highly technical physician billing and coding issues.” It said it had instituted reforms such as a centralized process to set physician salaries.


‘Pattern of overcompensation, kickbacks and sham payments’

An attorney for a plaintiffs in a medical malpractice case against Dr. Michael J. Rosner filed a motion in Henderson County Superior Court this week seeking to use documents generated by the state and federal investigations to prove a pattern it contends Rosner himself was involved in. The settlement, said the motion by plaintiff’s attorney Wade Byrd, showed that Adventist had purchased physician practices in order to control referrals to its hospitals, had encouraged the referrals through “a gross pattern of overcompensation, kickbacks and sham payments of large sums of money” and had submitted “false, fraudulent, doctored, deceitful and/or fabricated reimbursement claims” to the federal insurers.
The “same or similar issues … more likely than not occurred, at least in part, during the relevant time period of 1999 through 2005, regarding Michael Rosner, M.D., and his staff and other doctors working with Dr. Rosner including Adventist radiologists, cardiologists, family practitioners, etc.”
Arguing that Rosner may also have participated in the sort of overutilization and billing schemes that resulted in Adventist’s $118 million settlement, the medical malpractice plaintiffs made a sweeping request for documents over a six-year period. The lawsuit asks Superior Court Judge Zoro J. Guice Jr. to order Adventist and Park Ridge to produce “all documents in any way relating to any money, salaries, bonuses, gifts, loans or anything else of value provided by Adventist and/or Park Ridge to any Adventist and/or Park Ridge physician, or any other physician, between the years of 1999 and 2005, to be inspected for illegal kickbacks, scams and/or conspiracies … to defraud the public through its billing practices.”
A spokeswoman for Park Ridge said the hospital would have no comment on the plaintiff’s motion.
“I’ll certainly let the hospital know you’re inquiring,” attorney Phillip Jackson, who represents Park Ridge, said in a telephone interview. “The attorneys for the hospital don’t have any comment on it.”


31 cases pending

Byrd’s motion to produce the documents comes in a lawsuit brought by Steven Wayne Collar, one of 31 pending malpractice lawsuits brought by patients of Rosner, a neurosurgeon whose license to practice had been revoked and later reinstated by the state Medical Board.
Collar and his wife, Pamela Mae, traveled from their home in Ooltewah, Tenn., to Fletcher for an appointment with Rosner in October 2001 seeking relief for dizziness, trouble with speech, decreased memory, pain, fatigue and headaches, according to the complaint filed on Jan. 15, 2004.
After a series of MRIs and a Tilt Table Test, Rosner diagnosed Collar with spinal and brainstem problems that he said he could correct with a suboccipital craniectomy, a subpial resection of cerebellar tonsils and a cervical laminectomy — operations on the spinal cord and brain stem that many patients among the 30 other plaintiffs had also undergone.
The lawsuits filed by Byrd on their behalf contend that the surgeries were unnecessary and contraindicated — or not supported by the diagnosis.
The neurosurgeon told the patient that the surgeries were medically appropriate “and assured Mr. Collar that with a bit of luck he would be able to return to work in three months and would return to a fully functional level within six to 12 months,” the lawsuit said.
In the only malpractice lawsuit arising from Rosner’s Park Ridge surgeries to go to trial, a jury last year found Rosner negligent in his treatment of Pamela Justus, a patient who died 12 years after Rosner’s surgeries at age 58. The jury awarded $512,000 but then subtracted all but $1 based on its finding that Pam Justus had failed to take measures to avoid or minimize her health problems, which included smoking, diabetes, depression and addiction to painkillers. Judge Guice later restored the $512,000 — an amount Byrd says has grown to $1.2 million based on interest since the date of the lawsuit. Rosner has not paid but has posted a bond to cover that amount if his appeal of the verdict is unsuccessful.

Jury cleared Park Ridge, Adventist


The jury cleared Park Ridge and Adventist of any wrongdoing in the Justus case.
Collar, whose case is next up but yet to be calendared, returned to Park Ridge seven weeks after his surgery and complained to Dr. Rosner that he was suffering from fluctuating blood pressure, severe headaches, decreased memory and cognition and worsening tinnitus. Four months later, in April 2002, Collar again visited the doctor, reporting blurry vision, trouble swallowing, loss of balance, very cold hands and tingling or numbness in his hands and feet.
In subsequent appointments on Oct. 28 and Dec. 11, 2002, a year after the surgeries, Collar complained of difficulty with memory and cognition, constant pain up and down his arms and legs, “constant sensory disturbance and muscle weakness, rapid heart rate. Despite the symptoms, Rosner “documented in his report that Mr. Collar was doing extremely well.”
Four months later, in March 2003, Collar underwent a corrective surgery to stabilize his spine at North Shire University Hospital in Massachusetts.
Collar argued in the lawsuit that the “unnecessary surgery” left him with continuous severe pain, unable to walk without a cane or drive a car, unable to work or interact socially with friends and family.

Byrd, Collar's attorney, said the revelations about kickbacks to surgeons raises questions.

“The truth is I don’t know because in the first case of course we discussed and deposed Dr. Rosner about how many of these he did and how much he was charging the patients and how much he got paid," Byrd said. "What we didn’t know to ask is whether or not the hospital was paying any kind of kickbacks or any kind of money for bringing all these patients to him. So my motion is to compel them to answer those type of questions. That would constitute Medicaid and Medicare fraud as the whistleblower case already said.


Attorneys for Rosner, Park Ridge and Adventist argued in the Justus case that the surgeon’s procedures are based on sound diagnoses. In court, Rosner and expert witnesses called by his defense team testified that the spinal and brainstem surgeries he pioneered have helped many people.
In motions filed last week in the Collar lawsuit, attorneys for Park Ridge and Adventist point out that the Justus case had fully aired the issue of the hospital’s responsibility to vet and monitor Rosner. The jury decided unanimously that the hospital defendants were not negligent and did not “conspire with Dr. Rosner” to allow unnecessary surgeries.