Post-acute providers remain concerned about patients’ right to freedom of choice of providers. Anecdotes about heavy-handed treatment of patients and their families with regard to their right to choose continue to proliferate. Both post-acute providers, and patients and their families have very successfully raised issues with hospital administrations related to patients’ right to choose. These challenges have been based on applicable law and regulations, and patients’ experiences.

Whistleblower Lawsuit

Now post-acute providers, and patients and their families more frequently have an unexpected ally in physicians with regard to this issue. For example, Ayman Daouk, an orthopedic surgeon in Florida, recently filed a whistleblower lawsuit against Orlando Health complaining that the Hospital System tried to force him to make referrals within the system. Dr. Daouk claims that when he refused to do so, he was fired. Dr. Daouk claims that the Hospital’s actions violate both the Stark law and the federal anti-kickback statute.

Specifically, Dr. Daouk claims that because Orlando Health owns the facilities to which physicians are required to refer, “there exists an unbroken chain of financial relationships that renders the referrals as violations of the Stark law.” Daouk also claims that physicians received payments and other benefits for referring patients to Orlando Health facilities that violate the anti-kickback statute.

In 2014, Dr. Daouk was contacted by administrators at Orlando Health about his performance of surgeries at a competitor hospital. Administrators told Daouk that his employment would be terminated if he continued to perform surgeries at other hospitals. When Daouk objected, he was told that he was “sending a very negative message to [his] employer.”

Daouk was also criticized for failure to make referrals to an imaging center owned by the Hospital. Daouk said that he declined to make more referrals because of the inability to receive images through the facility’s portal, difficulty making appointments for patients, and complaints from patients about waiting for long periods of time.

The U.S. Department of Justice (DOJ) has declined to join Daouk in his lawsuit, but he can, of course, continue to pursue his lawsuit on his own.

Based on the common law or court decisions and federal statute and regulations, it is clear that all patients have the right to freedom of choice of providers. The pressures on physicians, post-acute providers, and patients and their families to “go along” has been intense for some time even though some providers continue “pay lip service” to the mandate for patients’ right to choose.

This issue is longstanding and unlikely to be resolved in the near future. Hunker down!

©2020 Elizabeth E. Hogue, Esq. All rights reserved. No portion of this material may be reproduced in any form without the advance written permission of the author.

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