Hospital may face numerous lawsuits

A former radiology technician accused of improperly entering negative results on mammograms at Perry (GA) Hospital has pleaded not guilty to the charges. Legal observers say the hospital is facing a storm of lawsuits over the alleged fakery.

Rachael Michelle Rapraeger, 30, of Macon, GA, entered the not guilty plea recently in Houston County Superior Court, according to her Macon attorney, Floyd Buford, JD. Rapraeger was indicted by a Houston County grand jury on 10 felony counts of computer forgery and 10 counts of misdemeanor reckless conduct. Judge Katherine K. Lumsden said the earliest Rapraeger's case could be heard would either be the trial week of April 4 or April 11 of 2011.

Buford tells Healthcare Risk Management that Rapraeger maintains her innocence and intends to fight the charges. He declined to discuss her case further or to address speculation that someone else must have known about fraud on such a large scale. Victor Moldovan, JD, an Atlanta attorney representing Houston Healthcare, which operates Perry Hospital, did not return a phone call inquiring about whether the hospital has been sued yet, but he issued a statement earlier saying an anomaly in patient records was discovered April 2.

As hospital officials investigated, a technician admitted to the fakery on April 5, 2010, confessing that she signed off on mammograms as if she were the radiologist, Moldovan said. Rapraeger was sent home that afternoon and dismissed April 6, he said.

Tech banished from county

Rapraeger is accused of entering negative results for 1,289 mammograms at Perry Hospital from Jan. 22, 2009 to April 1, 2010, that were not read by a radiologist. Of the 1,289 mammograms entered as negative, 10 were actually positive, prosecutors have said.

The defendant was released on bond, which was conditioned on Rapraeger being on electronic monitoring, that she has no contact with any of the alleged victims, and that she may not work or volunteer in any medical or health-related areas, Buford says. She also was banished from Houston County as part of the agreement while on bond, except for court appearances and appointments related to the electronic monitoring.

Meanwhile, Perry Hospital is facing some difficult obstacles from the standpoint of civil malpractice cases brought on behalf of patients affected by the mammogram results, says malpractice plaintiff's attorney Daniel Hodes, JD, a partner with the law firm of Lopez, Hodes, Milman and Skikos in San Francisco.

The hospital likely will admit that it was responsible for the negligent actions of an employee, according to Hodes; but it will probably counter that the actions were certainly intentional, and the hospital is not responsible for the intentional torts of an employee, Hodes says.

Then the question becomes whether the employer is responsible for the intentional wrongdoing of an employee, he says. The court will ask if it was the kind of action that might be considered to be foreseeable under the circumstances.

Many lawsuits expected

As an example, Hodes cites a fertility scandal at an institution in California that involved a situation where several fertility specialists misappropriated eggs and other genetic material from couples and gave them to others. Their actions obviously were intentional and arguably criminal, he says, but the question was whether their acts might be considered to be foreseeable under the circumstances, Hodes says.

"The courts did find the actions foreseeable and held the university responsible for the misdeeds of the doctors," he says. "In this circumstance, a similar ruling could be expected, and I think that the hospital would be held vicariously liable for the misdeeds of this technician."

Hodes says he is certain the hospital will be sued by many of the patients and expects they will fare well.

"I would argue that if you had been vigilant, if you had policies, procedures, protocols, and the like that provided for checks and balances and safeguards, [you] would have detected this a long time before you actually did and a long time before my particular client's mammogram was filed as normal," he says. "That's a cause of action that would be directly against the hospital, and the outcome of that would have nothing to do with whether the court deemed the employer vicariously liable for the misdeeds of the employee."

Sources

Daniel Hodes, JD, Partner, Lopez, Hodes, Milman and Skikos, San Francisco, CA. Telephone: (415) 956-5257. E-mail: info@lopez-hodes.com.

Floyd M. Buford, JD, Buford & Buford, Macon, GA. Telephone: (478) 742-3605.