A Florida surgeon filed a whistleblower lawsuit against his former employer, Orlando Health, claiming it violated federal law by requiring him to perform surgeries and refer patients within the network’s facilities — and firing him when he did not obey.
Ayman Daouk, MD, an orthopedic surgeon in Orlando, alleged in a lawsuit filed in early January that he was fired for performing surgeries at Florida Hospital, a facility unaffiliated with Orlando Health, and for referring patients to radiologists outside of the health system’s network. (He and his attorney declined to be interviewed for this story.)
Daouk sued Orlando Health and three of its subsidiaries — Physician Associates LLC, Orlando Health Physician Group and Orlando Health Imaging Center — claiming that mandatory self-referrals violate “Stark law” and anti-kickback statutes, the lawsuit stated.
The complaint said that because Orlando Health owns the facilities that it requires physicians to refer to, “there exists an unbroken chain of financial relationships that renders these referrals as violations” of Stark law, which prohibits doctors from referring patients to entities where they have financial interests.
Daouk also claimed that physicians received payments and benefits for referring to Orlando Health facilities, a direct violation of the federal anti-kickback statute.
Orlando Health administrators allegedly demanded that Daouk cease performing surgery at Florida Hospital, and sent a letter terminating his employment in August 2018.
Representatives from Orlando Health said they are not permitted to comment on pending litigation.
Daouk was employed by Physician Associates for three years when it was acquired by Orlando Health in 2012. In the complaint, Daouk said that at the start of his employment, physician referrals in-network were highly suggested, but not required.
Other doctors within the Orlando Health System were targeted for practicing medicine outside of the hospital network in 2014, according to the complaint. Chief Operating Officer Linda Zinkovich allegedly contacted a podiatrist at Orlando Health that performed surgeries at Florida Hospital, claiming that the doctor “should show some loyalty to the system.”
Daouk, too, was contacted by administration officials for performing surgeries at Florida Hospital. In November 2014, Daouk was informed that his employment would be terminated if he continued performing surgeries at other hospitals, the complaint stated. When Daouk objected to this restriction, Dennis Buhring, president of Physician Associates, allegedly said that he was “sending a very negative message to [his] employer.”
Daouk and other physicians were also asked to send more patients to Orlando Health Imaging Center, an Orlando Health facility. Daouk claims that he attempted to refer more patients to this imaging center, but found the quality of care to be unacceptable.
His complaint said he struggled to obtain images through the facility’s portal, his staff had trouble contacting the office to make appointments, and his patients complained of long wait times. Despite sharing this feedback with administration, Daouk said he was continually asked to refer patients to Orlando Health Imaging Center.
There are a number of reasons why hospitals may require referrals to be made within network, said Mollie Gelburd, JD, associate director of government affairs at the Medical Group Management Association. One reason may be promoting care coordination, as referring patients to doctors exclusively within network makes the transfer of medical records and information easier.
However, she said, there is concern that hospitals require doctors to practice medicine and make referrals in network for a profit motive.
“It’s important for a physician to use their own clinical judgment,” Gelburd told MedPage Today in an interview. “A hospital shouldn’t be able to override that.”
Jay Wolfson, PhD, a health policy expert at the University of South Florida in Tampa, said this case “goes to the heart of physician clinical autonomy.”
Hospitals use various methods to ensure that physicians refer patients to its own entities, including non-compete agreements that prohibit doctors from practicing medicine in a set geographic area around their place of employment during their contract, or even after termination.
A 2018 survey of 2,000 doctors in five states found that 45% of primary care physicians were bound by this sort of non-compete agreement, though hospital-based physicians are less likely to be restricted by these clauses.