Disgraced doctor's losing
lawsuit over hospital job
Former gynecologist sued a Troy hospital for $1.5 million
after he was fired for making a false entry in a medical record
By David Baker
Posted Monday Oct. 28, 2013
Correction appended 10/29/2013
Akiva Abraham, the former gynecologist who was sued in a now-settled lawsuit that alleged he performed an unnecessary and unauthorized breast surgery and who went to prison for insurance fraud stemming from an arson, had earlier filed his own lawsuit against another hospital after it fired him for making a false entry in a medical record.
Abraham’s suit, filed in Saratoga County in 2000, was against Seton Health Systems, the operator of St. Mary's Hospital in Troy, NY. In it, he alleged that his dismissal was a violation of his employment contract. He demanded $1 million compensation and $500,000 in punitive damages, and that Seton Health defend him and pay any damages in another malpractice lawsuit that named him, a group practice where he had worked, and Samaritan Hospital in which Abraham was alleged to have injured a woman during childbirth, causing a permanent disability.
Samaritan Hospital was later dismissed from the case. The lawsuit is listed on the court system's web page as being ‘discontinued’ in June 2003, just before a scheduled trial. It could not immediately be determined if there was a settlement.
Three years later, Abraham's lawsuit against Seton Health was dismissed on a motion for summary judgment – by the same judge who would later preside over a claim against Abraham and Samaritan Hospital that alleged Abraham left a patient disfigured while performing an unnecessary surgery, and that Samaritan Hospital was negligent when it granted and repeatedly renewed Abraham’s privileges.
That lawsuit – in which Susan Stalker of Waterford claimed she had been damaged when Abraham removed a large amount of tissue from her breast without her consent while she was sedated when he was scheduled to perform only a needle biopsy – was reported on this blog's sister web page exclusively in February 2012. The lawsuit, which also made the unusual claim against Samaritan Hospital of ‘negligent credentialing’ ended in August 2012 with a settlement on the first day of trial after a six-year legal battle. By then Abraham, who had no malpractice insurance cover, was in prison and had filed for bankruptcy, making Samaritan Hospital effectively the only defendant.
Abraham's claim against Seton Health alleged that the hospital breached a contract of employment that was signed in June 1998. The three-year deal called for Abraham to be paid $175,000 a year, plus a signing bonus of $10,000. An addendum signed in December 1998 required Seton Health to reimburse Abraham the cost of additional “tail” malpractice insurance at $5,313 a year.
“Tail” policies cover claims received after a period of insurance has ended for incidents that occurred prior to the start of the tail policy, by extending the reporting period. In this case, the tail policy would have covered the time Abraham was with OB/GYN Heath Center Associates – from which had been fired – for claims received after he started work at Seton. Abraham's complaint alleges that Seton failed to provide the tail policy.
This insurance cover would later become the subject of yet another lawsuit, filed in Nassau County by Physicians Reciprocal Insurers against Abraham. The insurer claimed it was not liable to defend Abraham or pay any damages in the injured mother case once Samaritan Hospital was no longer a defendant. The insurer was initially ordered by a state Supreme Court judge to provide the coverage but a Second Department Appellate Division decision reversed the trial court ruling.
In the decision that dismissed Abraham’s claim against Seton, Supreme Court Justice Stephen A. Ferradino said that Abraham had falsified a medical record.
“It is undisputed that (Abraham) made entries on the patient’s medical chart that did not accurately reflect the services he provided to the patient,” Ferradino wrote. “Most notably he indicated he conducted a full physical examination of the patient and took all of her vital signs when in fact he only palpated her legs and pushed on the patient’s belly.”
Ferradino said the patient had been brought to the hospital from a nursing home and was unable to speak due to a prior stroke, but that there were witnesses to Abraham’s actions.
“That examination was conducted in the waiting room in the presence of a receptionist and an ambulance crew member. Additionally, an erroneous billing code was entered for the services at (Abraham's) direction.”
The billing entry was questioned by staff but Abraham refused to change it, Ferradino wrote. It was later corrected after a nursing supervisor brought it to the attention of management.
Dismissing the claim, Ferradino said the wording of the contract Abraham signed was very clear. It said he could be terminated by “(a)ny conduct or practice by Physician that, at the sole discretion of the Employer, does not comply with the highest ethical standards of the medical profession.”
In an affidavit filed in the case, Mark Donavan, who at the time was Seton’s chief executive officer, said: “The documentation of performing a physical examination when one had not been done is completely unacceptable. It does not comply with any ethical standard in the medical profession.”
And the incorrect billing entry could have exposed the hospital to a charge of Medicare fraud, Donavan said in the affidavit.
In his own affidavit, Abraham claimed that the ‘level 5’ billing – the highest option – was justified because it reflected a combination of several different examinations of the patient.
“According to the paperwork I had, there were many different areas covered in the various charts and a single chart did not have her full history and physical all in one," Abraham wrote. "When I created the office chart, I consolidated all of the information into a single chart.”
On the issue of the insurance coverage, Abraham said in a deposition that he expected the hospital to purchase the policy for him based on a verbal agreement, despite the wording of the addendum to his contract, which said that Seton would reimburse him for the premium only after he provided proof that the insurance had been obtained.
But despite that, a payment of $5,313 was made to Abraham without any evidence of coverage, according to a legal document filed by Seton’s attorney.
“Although Plaintiff did not provide proof of having obtained the tail insurance policy from PRI, Plaintiff had asked Denis Laraway, Chief Financial Officer, for an advance for the premium as he did not have enough funds to make the first installment,” Colleen H. Whalen wrote in an affidavit. “Although Plaintiff claims to have sent a check to PRI in February 1999 to purchase the tail insurance coverage, he never received any confirmation of PRI’s receipt of payment or of obtaining the tail coverage.”
Abraham was fired by Seton Health/St. Mary's Hospital in January 2000. His lawsuit against Seton was dismissed in January 2004. During that time he continued to have privileges at nearby Samaritan Hospital, operated by Northeast Health, Inc., (now a part of St. Peter’s Health Partners). Two months after his lawsuit ended, he performed the procedure on Susan Stalker that led to her lawsuit against him and Samaritan Hospital.
In 2005, the state revoked Abraham's medical license for 34 counts of misconduct and gross misconduct, none of them related to the Stalker surgery or Samaritan Hospital. One of the counts alleged that he falsified a medical record during his residency at Albany Medical Center Hospital. He also was accused of having sex with a vulnerable patient in a waiting room at St. Peter's Hospital.
His appeal of the revocation was denied. In 2010 he was convicted of insurance fraud and sentenced to 4 to 12 years in prison for telling an insurance company that he did not know the cause of a fire at a nightclub building in Colonie he had purchased two weeks earlier with a bogus $475,000 mortgage. An earlier trial on a charge of arson had ended with a hung jury. During that trial, prosecutors said flame logs and four gallons of a fire accelerant Abraham had purchased three days before the fire were found at his home.
In 2011, the state Labor Department began proceedings against Abraham, claiming he had made improper deductions from the paychecks of people who worked for a nurse staffing agency he started after losing he medical license. It ordered him to pay $331,000.
And earlier this month, arguments were heard in Abraham's appeal to the state's highest court, the Court of Appeals, of his fraud conviction. A decision is expected in mid December.
Read the initial story on the Susan Stalker lawsuit HERE