Obama prosecutors protecting Harvard-linked hospitals?

By Marty Gottesfeld

In addition to Obama's Department of Justice mishandling of the Clinton e-mail server unvestigation (spelling intentional), other political allies of the former administration continue to enjoy their above-the-law statuses nearly six months into the new presidency. The problem is perhaps clearest in my home state of Massachusetts, where acting U.S. Attorney (as well as noted Democratic donor and former treasurer of the Harvard Law Review) William Weinreb continues his Holder-appointed former bosses' habit of turning a blind eye whenever a Harvard institution breaks federal law, a more common occurrence than you may think.

The most recent example to hit area papers was a lawsuit against Harvard's largest teaching hospital for routinely putting patients in danger and committing federal insurance fraud by double or triple–booking orthopedic surgeries as if they were cheap airline tickets. People were left unconscious, waiting for surgeons to arrive from other operating rooms for over an hour, and neither they nor their insurers, including the federal Medicare and Medicaid programs, were told about the risky delays, according to anesthesiologist Lisa Wollman, who worked at the hospital in question for over 20 years. Further, financial incentives put in place by management encouraged doctors to perform more operations, Wollman said.

"This often meant an unwitting patient was left fully anesthetized – unconscious, paralyzed, intubated, dependent on a ventilator to breathe – for longer than medically necessary, often in the care of trainees, without the backup of a properly qualified surgeon, despite legal requirements," claims the suit. Wollman first filed it against Massachusetts General Hospital (MGH) under seal two years ago and waited for the Boston U.S. Attorney's Office to join the effort on behalf of the American taxpayers, who fund Medicare and Medicaid. After all, with the promise of triple damages plus a minimum $5,000 penalty for each bogus Medicare and Medicaid charge, not to mention the glorious headlines about saving elderly and/or poor patients from a practice labeled by doctors like Wollman as risky and "based on deception and driven by economic benefit," why wouldn't federal prosecutors want to enlist for the fight?

For one example, "Surgeon B" was supposed to be the attending physician but "never appeared in the room," leaving a senior trainee to handle what's described in the Boston Globe as "a serious and sudden constriction of the air ways," says Wollman. When the anesthesiologist raised the event with management, she says hospital officials did nothing "except to threaten her by saying that she had violated patient privacy and could face legal action." However, internally reporting such an incident to higher-ups would be in the best interest of the patient and would not break confidentially laws.

Regardless, why didn't federal prosecutors join Wollman's suit? Could it be because, as the Globe hinted, the Medicare and Medicaid rules that require surgeons to be present for all "critical portions" of a surgery in order to bill for an operation have "seldom been enforced"? That seems unlikely given the tendency of the Boston U.S. Attorney's Office to stretch federal law past its breaking point in ill-fated efforts to cover all sorts of things that aren't in fact illegal.

Indeed, many of the other things Boston's federal prosecutors chose to pursue like rabid dogs in recent years were minor in comparison and well off the beaten legal path. For example, in 2014 they pressed their luck trying to criminalize local politics when they claimed fraud and racketeering charges against non-Harvard-affiliated state probation office employees who weren't actually accused of pocketing any money for themselves. It goes without saying that no patients were at risk in that case, but it took multiple decisions by an exasperated appeals court to force the notorious attack dogs to heel.

There was also the Stryker Biotech case, where counter to common sense, Massachusetts federal prosecutors pursued fraud charges against a non-Harvard-affiliated medical company only to have their case fly apart at the seams shortly after jury selection when it became apparent that many of the people prosecutors planned to present as victims actually intended to testify for the defense. There's been a lot of discussions recently about unnecessary regulations holding back American businesses, but can you imagine trying to run a company under the constant threat of federal prosecution for things that aren't even against the law in the first place? How do you repeal regulations that don't exist?

Meanwhile, the same prosecutors didn't lift a finger when Harvard-affiliated Boston Children's Hospital had the Pelletier family stripped of parental custody of their then 14-year-old daughter, Justina, under false pretenses. Sixteen-year-old Justina eventually returned home unable to feel her legs, after her and her family's civil rights were violated as well as after Boston Children's had pocketed a small fortune in Medicaid money for treating a condition it seems even they had to have figured out she didn't have, possibly constituting health care fraud. There were plenty of ways federal prosecutors could have stood up for Justina and her family, but they didn't take any action against a Harvard hospital when a patient was at risk then either.

Additionally, it isn't this way elsewhere in the country. For instance, in April 2013, while Justina was at Boston Children's, the feds raided a Chicago-area hospital, arresting its owner, chief financial officer and four doctors. A whistleblower had filed a lawsuit, and Gary S. Shapiro, then the U.S. attorney for the Northern District of Illinois, took notice. Among the charges were that doctors at the hospital performed and billed Medicare for unnecessary sedation, similar to Wollman's claims against MGH.

So, why the difference? Why is one U.S. Attorney's Office unwilling to join a lawsuit – a civil action – against one hospital for Medicare fraud, while other federal prosecutors made criminal arrests for similar claims against a different institution?

Could it have to do with the fact that Boston's current acting U.S. attorney shares a Harvard affiliation with the Massachusetts hospital and that his predecessor, Holder-appointee Carmen Ortiz, directed the Center for Criminal Justice at Harvard? Did their connections to Harvard stop them from taking action for the Pelletiers even as Justina was nearing death's door and her case became the focus of intense national scrutiny?

Mass. General released the following statement after Dr. Wollman's lawsuit was unsealed: "The MGH continues to believe that its practices comply with all applicable laws and regulations, and the hospital will defend the claims accordingly."

Wollman released a statement through her attorney, Rueben Guttman, saying, "I am pursuing this case because my ethical obligation is to patients – past, current and future – who are unknowingly scheduled for concurrent surgeries." If Wollman wins the suit, she may be able entitled to receive 25 to 30 percent of any funds recovered under the False Claims Act.

Marty Gottesfeld defended former figure skater Justina Pelletier when she was maimed at Harvard-affiliated Boston Children's Hospital. The Obama administration arrested him in February 2016, and is he's being held without bail by a Clinton-appointed magistrate. See FreeMartyG.com, the FreeMartyG Facebook page and the @FreeMartyG Twitter account for more information.