Nurses Fight Back and Win

I’ve represented nurses for over 35 years.  I’ve listened as hundreds of nurses describe their struggles with administrators determined to cut corners to make money.  They tell of staffing problems that make it impossible for them to provide the care their patients desperately need.  When the nurse complains too loudly, she finds herself fired or reported to the Nursing Board on trumped up charges.  As North Carolina law provides little recourse for mistreated employees, nurses often leave the profession for better jobs.  But two nurses recently made headlines.  They fought back and made quite a lot of money doing it.

Vanessa Absher and Lynda Mitchell worked for several years as nurses at the Momence Meadows Nursing Center in Illinois.  Medicare and Medicaid covered the care for most of the patients at the 130 bed skilled nursing facility.  The nurses complained of dismal conditions at the home.  Often, patients did not receive medication, food, or water.  They lay for days in their own excrement.  They developed bed sores, scabies infections, and blood poisoning.  Management ordered staff to falsify patient records, medication charts, and staffing records to hide patient injuries and deaths.  When the nurses objected, the owner ordered them to “shut your mouth.”  Management finally fired one of the nurses.  The other one quit.  Neither gave up.

The nurses filed an action under the federal and state False Claims Acts.  They alleged that Momence had fraudulently billed the government for care that it did not provide to the patients.  They also claimed that Momence fired them for blowing the whistle on the draconian conditions at the home. 

As Momence would soon learn, the law imposes extreme penalties for filing fraudulent claims for government money.  Assume the defendant files a false Medicare claim for $25.00.  Initially, the penalty is three times the amount of the false claim.  Now, the defendant has to reimburse the government $75.00.  But, an additional penalty of up to $10,000 can be added for each false claim. 

Based on these laws, the jury returned a verdict of over $28 million against Momence.  Because whistleblowers are entitled to a share of the damages awarded, the nurses’ share could total more than $7 million, plus court costs and attorney fees.  This is in addition to the $400,000 that the jury awarded the nurses in connection with their own claims against the defendant.

It took almost nine years for the nurses to get a jury verdict in the Momence case.  Appeals can tie up the courts for several years to come.  And the nurses may have a bit of trouble collecting their money.  Courts earlier ruled that Momence’s insurance company was not liable for the damages.  Accordingly, the defendants’ assets are the sole source of funds for the verdict.  Fortunately, the defendants can’t discharge the debt in bankruptcy court.  And the government will help the nurses collect the damages.  Even the Mafia has paid up when the government demands its money.

North Carolina has its own False Claims Act.  It provides for treble damages and penalties of up to $11,000 for each false claim.  Whistleblowers can receive up to 30% of damages collected.  In addition, any whistleblower who suffers retaliation from his employer-defendant is entitled to reinstatement and twice the lost back pay.  Again, the employee is entitled to attorney fees and court costs.

The state and federal False Claims Acts give nurses and other health care workers powerful weapons to use in fighting back against employers who commit health care fraud – even in North Carolina.

Can "They" Do That?

The lady was angry, upset, and visibly shaken. She had just left a meeting with the investigators of her licensing board. They accused her of being a drug addict. She could admit to being a drug addict and enroll in their impaired professional program or they would revoke her license to practice. She had denied having a drug addiction problem. The investigators showed her affidavits from four physicians in support of their contention that she had a drug problem. She grabbed the affidavits and stormed out of the Board’s office. She shoved the affidavits at me.
“I can’t understand why these doctors would say that I have a drug problem. They are friends of mine. We work together.”
I noticed that none of the affidavits had been signed. I called each of the four physicians. They denied even discussing affidavits with the investigators from the licensing board. I was able to get affidavits from the doctors in support of my client. None thought that she had a drug problem. The licensing board dropped the charges against her.
The experience reminded me of one of my favorite shows – The Closer. In it, Deputy Chief Brenda Lee Johnson wrangles confessions from criminal suspects. She lies to them and we all applaud her craftiness as the evil doers are hauled off to jail. But can the police use Deputy Chief Johnson’s tactics in real life? What about investigators for licensing boards? Do the laws restricting the activities of police apply to licensing board investigators?
The Constitution prohibits law enforcement from using coerced confessions. Police cannot beat a suspect. They cannot starve him, deprive him of sleep, or deny bathroom breaks. Water boarding is generally frowned upon. If officers interrogate a suspect in custody, they must first advise him of his Miranda rights. However the courts have allowed police to lie to suspects about the evidence they may have. They can claim to have found the suspect’s fingerprints at the crime scene. They can claim to have witnesses who will incriminate the suspect. They can claim that the suspect failed a lie detector test or that they found the victim’s blood on the suspect’s clothes. This is especially true when the suspect is not in custody during the interrogation.
Although the police have leeway when trying to obtain confessions, prosecutors and judges are bound by ethical obligations and cannot lie to suspects to get confessions. In a murder case from Carrboro, North Carolina, the police showed the defendant a letter that they claimed the District Attorney had written. In the letter, the DA supposedly said that he would seek the death penalty if the suspect did not confess to the murder. When the attorney for the defendant challenged his client’s subsequent confession, the DA denied having written the letter. The court ruled that the police had illegally obtained the confession by implicating the DA’s office.
So in the case with the four fake affidavits, it appears that the investigators for the licensing board did not violate the law. They did not beat, starve, or otherwise physically abuse my client. They only lied to her. As they are not members of law enforcement, they could not hold her in the interview room against her will. She obviously knew that she was free to leave at any time. They did not have to give Miranda warnings to her before asking questions because she was not in custody.
This is not the only case I’ve handled that involved questionable tactics used by licensing board investigators. In another case, my client was charged with exceeding her scope of practice. The investigator relied on a statement she had allegedly obtained from a physician to support the charges. When I contacted the physician, he denied having been interviewed. When faced with testimony from this physician, the Board dropped the charges against the licensee.
These cases make it clear that people who must have a license in order to work, such as physicians, dentists, pharmacists, nurses and others, should refuse to answer questions from licensing board investigators unless they have first retained legal counsel. The attorney can protect the licensee from many of the above abuses.
Most health care providers have malpractice insurance. Usually, those policies offer licensure defense coverage. These policies will reimburse the provider for many of the expenses involved in cases brought by licensing boards. If a licensing board contacts a provider concerning a complaint, the provider should contact his insurance carrier before responding to the licensing board. The insurance carrier will either assign one of its attorneys to defend the claim or will allow the licensee to obtain a lawyer of his or her own choosing. Once the licensee has retained counsel, the licensee should refer all calls from the board’s investigators to his or her lawyer. It is not appropriate for the investigator to continue to try to question the licensee once the licensee has notified the board that an attorney is handling the case. In another case I handled, when my client told the investigator that she had a lawyer, the investigator continued questioning the provider. She asked, “Why do you think you needed a lawyer?” “Did you do something wrong?” My client wisely hung up the telephone.
So, “they” can “do that”, but only if you let them. Be wise. At the first contact from an investigator, get a lawyer. Don’t try to handle the problem on your own. It will not go well.

Curiosity Killed the Cat

Last year, a court sentenced a cardiac surgeon to four months in prison for violating the federal privacy law known as HIPAA. The penalty surprised those of us who have studied HIPAA. We thought imprisonment would be reserved for those who profited financially from disclosing confidential information. While the surgeon had illegally accessed information over 300 times, he had not sold the information, but had kept it to himself. The case gave a clear warning to health care providers. The HIPAA police are here and they mean business!
History of HIPAA
In 1996, Congress enacted HIPAA to encourage the use of electronic patient records. Congress hoped the law would reduce health care costs. The law included provisions for assigning each American a unique patient identification number. A patient’s entire medical history and related financial information would be attached to that number and accessible over the Internet. Strong opposition to HIPAA arose because of privacy concerns. Responding to those concerns, the Department of Health and Human Services (HHS) issued privacy regulations in 2002. The regulations require health care providers to protect information they receive from their patients. Recently, the federal government has begun vigorously enforcing HIPAA.

In a 2010 case similar to the one involving the surgeon, the government disciplined a nurse who accessed her ex-husband’s medical records at the hospital where she worked. Significantly, her actions also violated her ethical obligation to protect patient confidentiality. Her nursing board could revoke her nursing license for her actions.

Recent Cases - Pharmacies
In the early part of 2000, the HIPAA police learned that CVS pharmacies nationwide had been tossing old patient records into dumpsters behind the stores. This clearly violated HIPAA’s requirement that such records be shredded. To settle the enforcement action, CVS paid $2.25 million in fines and submitted to long-term monitoring of its privacy practices.

In 2010, the HIPAA police slammed Rite Aid Pharmacies with a $1 million fine. That year, the government also initiated an investigation into Walgreen’s HIPAA practices.

Since the enactment of laws requiring those who purchase cold medicines containing ephedrine to sign a pharmacy log, we’ve all seen the ephedrine logs beside the pharmacy cash registers. Last year, the HIPAA police cited a local pharmacy for positioning the log on a counter in a way that exposed the names of customers who had signed the log.

In another case, a pharmacy employee accidentally put one patient’s insurance card into a bag containing another patient’s medication.

Finally, another pharmacy chain did not comply with HIPAA’s requirement that all of its business associates sign confidentiality contracts agreeing to protect patient information. The associate in question was the pharmacy’s lawyer.

Inadvertent Disclosures – “Don’t Talk So Loud!”
HIPAA requires health care providers who talk about their patients to speak quietly so that they are not overheard. Last year, the government disciplined a physician who chose to discuss his patient’s HIV treatment in the clinic waiting room while other patients were present. It also disciplined a hospital nurse who chatted too loudly about her patient’s HIV diagnosis.

Other inadvertent disclosures that are illegal include:
1. Positioning computer screens on counters in a way that they could be viewed by people in the waiting areas of the clinic
2. Leaving patient charts out where they can be read
3. Talking to a patient on the telephone about his condition in a location where others can overhear the conversation
4. Leaving messages with people at the patient’s home or office or on answering machines without patient consent
5. Discussing a patient’s condition without patient consent – this may happen in cases where the provider seeks a second opinion or advice on a case
6. Talking about patients in office “huddles” when the huddle includes people who are not on the patient’s treatment team.

A Word to the Wise
Health care providers who receive a patient complaint concerning privacy practices or who are contacted by government investigators about potential privacy violations should immediately contact their practice attorney for guidance. We have learned from recent cases that HIPAA violations can result in significant fines, imprisonment, loss of staff privileges, and loss of professional licensure. Providers should not try to handle these cases without legal counsel.