News

Neurosurgeon not linked to fraud case, attorney says

Attorney Phillip Jackson makes a point during a motion hearing in pending malpractice cases against Dr. Michael J. Rosner and Park Ridge Health.

By Bill Moss, Published: October 24, 2015

Dr. Michael J. Rosner, who faces 31 medical malpractice lawsuits over surgeries he performed at Park Ridge Health, has no connection to the fraud that led the hospital’s corporate owner to settle a whistleblower lawsuit for $118 million, an attorney for Park Ridge said in court last week.

Three whistleblowers who worked at Park Ridge claimed in a lawsuit that the hospital and its corporate owner, Adventist Health System, had defrauded the federal government through overutilization and kickbacks to physicians and referring medical providers for surgeries and tests. Adventist, the Orlando-based owner of Park Ridge and 43 other hospitals in 10 states, agreed to pay $118 million in a settlement filed in U.S. District Court in Asheville on Sept. 21.
“There were no negative impacts on the quality, safety or individual cost of patient care at AHS hospitals or clinics as a result of these issues,” Park Ridge CEO Jimm Bunch said in a memo to Park Ridge employees. “And as stated in the Department of Justice press release on the issue, ‘the claims settled by this agreement are allegations only, and there has been no determination of liability.’”
The $118 million settlement nevertheless got the attention of Wade Byrd, the Fayetteville trial lawyer who represents the plaintiffs with pending lawsuits against Rosner. Byrd filed a motion earlier this month asking the court to allow his legal team to depose the whistleblowers and asking the judge to compel Adventist to turn over documents relating to “money, salaries, bonuses, gifts, loans or anything else of value” provided to physicians so the trial lawyers would inspect them for “illegal kickbacks, scams and/or conspiracies … to defraud the public.”
“Adventist Health System paid $118 million for fraud as to Medicare patients,” Byrd told Judge Guice. “There’s no question this (discovery request) could lead to relevant information.”
Jacqueline Grant, an attorney for Park Ridge, said Rosner’s relation with Park Ridge does not fit any of those cited in the Justice Department settlement.
“You don’t have to take our word for anything,” she said. “It’s a public record. It’s apples and oranges.”
The settlement in the whistleblower case “was limited to physicians employed by 18 different hospitals within the Adventist Health System — not related just to Park Ridge, but 18 different hospitals,” Grant said. “And it only applied to the physicians who were employees, physician practices that were owned by the hospitals and physicians who had a contract to provide services. Dr. Rosner is not an employed physician, has never been an employed physician. Park Ridge does not own his practice, has never owned his practice. He does not have a professional service agreement with Park Ridge and has never had a PSA. So Rosner has absolutely nothing to do with the issues that were the subject of the (whistleblower) action.” An exhibit identifying physicians and other medical providers who took part in the fraud whistleblowers alleged, she pointed out, does not list Rosner.
Grant characterized the plaintiff’s motion as the kind of broad “fishing expedition” appeals courts have barred. Parties in a civil lawsuit “should not be allowed to roam at will in the closets of the other,” she said, quoting from one ruling.

Consolidation request

The only Rosner case that has been tried was brought by Billy Justus on behalf of his wife, Pam, now deceased. Rosner operated on Pam Justus in 2001 and 2002. After a six-week trial, a jury found Rosner negligent and exonerated Park Ridge and Adventist of any responsibility for any wrongdoing. The jury settled on a $512,000 in damages before reducing the award to $1 based on a finding that the patient had failed to minimize health complications.
Back in court on Friday, the attorneys sparred over the plaintiffs’ motion to consolidate 25 pending cases — six were discarded for various reasons — into a single trial over the liability of Park Ridge and Adventist in hiring and monitoring Rosner. The defense scoffed at the idea.
Attorney Scott Stevenson makes a point during a motion hearing on pending malpractice cases against Dr. Michael Rosner.“What Mr. Byrd’s essentially saying is we want the courts to assume that this was experimental surgery and for an improper purpose,” said Scott Stevenson, Rosner’s attorney. “All the testimony (during the Justus trial) was that these were not experimental in nature, that these surgeries had existed for decades, for certain conditions. I don’t see how in the world you can try a case against the hospital without first establishing that the surgery by Dr. Rosner was improper.”
Phillip Jackson, an attorney for Park Ridge, supported the point. Absent a finding of negligence by Rosner, he said, there’s no liability by the hospital.
“If Dr. Rosner provided exceptional care and the jury finds that it was within the standard of care, then guess what? The hospital can’t be responsible for a good surgery that Dr. Rosner performed,” he said.
Even if the cases are consolidated into one, Jackson said examining each patient’s experience is unavoidable.
“Each one of those patients has a series of MRIs. Each one of those patients has an examination that was recorded,” he said. “We would have to go through, in the trial that Mr. Byrd is proposing, each one of those 25 cases.” Jackson’s “rough calculation” from the Justus case was that lawyers had spent nine days interrogating surgeons, radiologists and other experts “on whether or not this was experimental surgery.”
“Mr. Byrd is proposing that we do that in the same trial again but we do it 25 times,” he said.
Judge Guice withheld a ruling on the whistleblower files, the consolidation request and other procedural motions. He directed the plaintiffs’ and defense attorneys to draft proposed orders supporting their side and said he’d choose one or the other or write his own.