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January 14, 2015

Doctors sued for granting admitting privileges to embattled surgeon

Daily Briefing

More than 12 doctors at two hospitals are defending their decision to grant admitting privileges to a spine surgeon who had been accused of unprofessional conduct and performing unnecessary procedures, USA Today's Jonathan Ellis reports.

Background on physician Allen Sossan

The two federal lawsuits involve physicians who approved physician Allen Sossan to perform spine surgeries at Avera Sacred Heart and Lewis & Clark Specialty Hospital in Yankton, South Dakota. One of the physicians was Mary Miroy, current president of the South Dakota State Medical Association, who was serving on Avera's Medical Executive Committee at the time.  

Sossan has been the subject of nearly 40 lawsuits brought by former patients or family members of patients who died during surgery. One of those cases resulted in a $933,835 award to the family of a deceased patient after a jury determined that the physician had performed an unnecessary procedure. In addition, Sossan has settled more cases outside of court.

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Sossan is scheduled to appear at a disciplinary hearing before the Nebraska Division of Public Health on Feb. 9.

The lawsuits have led to the release of many previously confidential documents, such as memos and board meeting minutes. Since the documents' release, former employees of the doctor have come forward, accusing him of fraudulent billing and performing unnecessary operations to enhance income.

Why the hospitals are being sued

Internal memos and meeting minutes from Avera administrators to staff show a decrease in admissions in October 2006, meaning a decline in revenue and physician income. The minutes stated, "Each lost admissions (sic) represents a $4,000 loss to physicians alone… a $5 million loss to the medical community and a $20 million loss to the community annually."

In 2008, a memo from Avera President Pam Rezac said that recruiting an orthopedic surgeon "will be given the highest priority."  Later, Sossan was extended admitting privileges at both Avera and Lewis & Clark.

The plaintiffs in the Sossan cases have argued that the hospitals wrongly extended privileges to Sossan to perform spine surgeries because they wanted generate a substantial amount of revenue.

However, Mary Milroy—current president of the South Dakota State Medical Association, who was serving on Avera's Medical Executive Committee at the time—says, "the idea that the money Sossan would bring to the hospital was ever discussed is repugnant and completely false. We were simply informed that there was no documentation in existence on which to base a denial of privileges and by legal opinion could not be done, so a reluctant yes was obtained."

By January 2010, Lewis & Clark administrators addressed concerns with Sossan's attitude. In addition, a July 2010 employee satisfaction survey conducted by the hospital found more problems with Sossan. According to the minutes, other hospital employees felt "as though the board has chosen profit over them by allowing... Sossan to become an owner in the facility."

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In January 2012, Sossan's admitting privileges were suspended at Avera. One month later, Lewis & Clark board members discussed doing the same, according to meeting minutes.

The case's legal implications

According to USA Today, the legal challenges in South Dakota "could pave new legal ground." The plaintiffs in these cases argue that the hospitals and doctors were negligent in granting Sossan admitting privileges.

Jonathan Van Patten, a law professor at the University of South Dakota School of Law, says, "If the entire entity can be sued, then the individual who act on behalf of the entity can be sued as well, unless they are given immunity for their activities by a specific state immunity statute." Van Patten said he did not know whether South Dakota's immunity statute would do so.

However, he cites precedence in a previous case in Maryland federal court in which the individuals responsible for credentialing physicians were held liable (Ellis, USA Today, 1/11).

Make sense of the changing fraud and abuse landscape

The Obama Administration has taken several steps to intensify its enforcement activities, including recent amendments to the False Claims Act and unprecedented coordination between the Department of Justice and the Department of Health and Human Services.

In this webconference, we help you make sense of the changing fraud and abuse landscape.

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