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    Man's painful back injury turns into a federal case

    His lawyers say they found evidence HealthSouth used unlicensed employees to perform therapy.

    [Times photo: John Pendygraft]
    John Darling grimaces as he changes his position.

    By GRAHAM BRINK, Times Staff Writer
    © St. Petersburg Times
    published March 17, 2002


    TAMPA -- Four years ago, John Darling filed a lawsuit against HealthSouth for what he said was a botched rehabilitation treatment that left him permanently disabled.

    As his lawyers researched the case, they found what they thought was a smoking gun. The HealthSouth employee who performed therapy on Darling wasn't a licensed therapist, they discovered. In fact, he cleaned toilets and workout machines in the mornings before clients arrived at the Clearwater facility.

    More digging revealed that HealthSouth may have overbilled the government, charging for licensed therapy performed by unlicensed employees, the lawyers said. They also found evidence that the company billed for one-on-one therapy when therapists were working with multiple clients.

    Last week, the U.S. Department of Justice agreed their claim had merit and filed notice that it intends to intervene in the lawsuit. The government is likely to look not only at Darling's case, but at whether HealthSouth overbilled Medicare at any of its 1,150 facilities in the United States.

    If the government's lawsuit is successful, the consequences could be severe for HealthSouth, the largest rehabilitative health care services company in the country, with annual revenues of $4.3-billion.

    Other false claims or whistle-blower lawsuits have been settled for hundreds of millions of dollars. Whistle-blowers such as Darling can get as much as 25 percent of any settlement or jury award.

    The False Claims Act has been law since 1863, when President Abraham Lincoln pushed for its passage in an attempt to thwart crooked munitions makers who were selling faulty ammunition to the Union Army. The idea is to reward people who blow the whistle on anyone who might profit from making a false claim to the U.S. government.

    "I certainly didn't expect this when I started out," said Darling, 41, who spends most of his time in bed at his Clearwater home or in an electric wheelchair. "I'd give it all to be better again."

    HealthSouth, based in Birmingham, Ala., has denied responsibility for Darling's condition. As for overbilling allegations, chairman and chief executive officer Richard Scrushy has responded to two similar pending false claims suits in Texas and Alabama by saying that he was "extremely disappointed" that the government elected to intervene.

    The company did not overbill Medicare, he said, and "we will be vindicated when we have a chance to state our case." Scrushy said the company will cooperate fully with any investigations.

    Officials with the U.S. Attorney's Office in Tampa and the Department of Justice declined to comment about the decision to intervene in the case.

    Darling had surgery on his lower back in February 1996. All went well, according to court documents, and his doctor prescribed a rehabilitation program consisting of a "gentle but progressive stretching exercise program to increase range of motion and flexibility."

    At HealthSouth Sports Medicine & Rehabilitation Center in Clearwater, a licensed physical therapist evaluated Darling and set him on a program. After a few sessions, another employee began working with him.

    The employee, according to court documents, worked for about $6 an hour and was not a licensed therapist. His duties included sweeping floors, maintaining the whirlpool and folding laundry, records show.

    During one session, the employee had Darling try to lift 60 pounds on a leg extension machine, the lawsuit states. The weight was much more than Darling should have tried just 11 weeks after surgery, his lawyers said. Darling said he felt an immediate pain in his back and right buttock. His condition quickly deteriorated.

    Darling, who gave the commencement speech when he graduated from the Pinellas Technical Education Center in 1996 and once worked as a cameraman for WTOG-Ch. 44, said getting out of bed these days is an immense struggle. He has left the house only a few times in the last year. Walking is a hardship.

    He moves around in a specially equipped electric wheelchair that allows him to lie flat. Like his bed at home, the wheelchair constantly vibrates, massaging his back. To relieve the pain, he has thought of having his nerves surgically severed, which would paralyze his legs. Darling has tried steroid treatments, massage therapy, chiropractic adjustments and hypnotherapy. As a recovering alcoholic, eight years sober, he tries to limit his pain medications.

    "I don't have any really good days anymore," said Darling, who constantly squirms in his wheelchair to find a comfortable position. "I don't want this to go on for the rest of my life."

    Darling's attorneys, Barry Cohen and David Tirella, said they hope Darling's lawsuit will help alert potential HealthSouth clients of the dangers of being treated by unlicensed therapists.

    "There shouldn't be any John Darlings in the future, people who have had their lives turned to misery like this," Cohen said.

    Darling's negligence claim against HealthSouth for allegedly injuring his back will remain in Pinellas County court. The claim of overbilling will move through the federal system and Darling could be used as a government witness.

    If they haven't already done so, government investigators will likely look at the Medicare billing records from a random sample of HealthSouth's facilities. HealthSouth has stated in the past that about 30 to 40 percent of its annual revenues are derived from Medicare. Scrushy, the company CEO, has said that the allegations relate to only a very small percentage of the company's Medicare revenue.

    From the random sample, the investigators can extrapolate the extent of the overbilling. If no settlement is reached, the case could go to trial and a jury would decide whether the overbilling took place and, if so, how much money to award.

    The company could also face civil penalties of up to $10,000 per false claim -- with potentially tens of thousands of claims at stake -- and possible loss of Medicare billing privileges if any overbilling was intentionally fraudulent. Cases like these often take years to resolve.

    During the past three decades, Cohen has had a contentious relationship with the U.S. Attorney's Office and the Department of Justice. On Thursday, he gave official notice that he might file suit against two federal prosecutors and two FBI agents for their roles in handling the Aisenberg missing baby case. Cohen represented the baby's parents.

    Cohen smiled at the irony of now joining forces with the government in the false claims suit. He said he is watching the case "like a hawk" and believes it's important that any punishment be substantial enough that it affects HealthSouth's bottom line.

    Otherwise, HealthSouth and other companies won't have any reason to comply with the law, Cohen said.

    "This is taxpayers losing money and it has got to stop," he said. "The government should not accept a token settlement."

    -- Information from Bloomberg news service was used in this report. Contact Graham Brink at (813) 226-3365 or brink@sptimes.com.

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