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Health Care Bill Cracks Down on Abuses by Chartable Hospitals

By JOSEPH RHEE March 25, 2010 A little-known effect of the newly-signed health care bill will be sharp new guidelines to prevent so-called "charitable" non-profit hospitals from taking advantage of the people they are supposed to help. Non-profit hospitals have been under fire for years over tactics such as allegedly price-gouging the poor and using aggressive collection tactics to collect debts. Whistleblowers Dr. John Bagnato (left) and Charles

Ex-DA has immunity from being sued, his lawyer argues

Former Dougherty County District Attorney Ken Hodges can't be sued for actions he took as a prosecutor, his attorney argued Thursday before a three-judge panel in the 11th U.S. Circuit Court of Appeals in Atlanta.

Hodges, the former Albany district attorney now running for the Democratic nomination for Georgia's attorney general, is being sued along with two other men by an Albany accountant who claims the trio fabricated testimony in an attempt to frame him on behalf of a powerful southwest Georgia hospital system.

Hodges, who did not attend the hearing Thursday, was represented by Michelle Hirsch, a staff lawyer in the office of state Attorney General Thurbert Baker. Because Hodges is being sued for actions he took while a state prosecutor, Baker's office is representing him as well as co-defendants Kelly Burke, another prosecutor appointed to the case after Hodges recused himself, and James Paulk, a Dougherty County investigator.

When Hodges and Burke were building a criminal case in 2005 against accountant Charles Rehberg and Albany surgeon Dr. John Bagnato, they were doing so in their capacity as prosecutors, Hirsch said, which "falls under the cloak of immunity."

Rehberg and Bagnato were indicted by a grand jury on three occasions on charges that stemmed from their sending of anonymous faxes to business and political leaders in Albany that were critical of the Phoebe Putney Health System. After the hospital system asked Hodges to investigate, he used grand jury subpoenas to acquire phone records that led to Rehberg, even though no grand jury was investigating the case at the time. A judge dismissed the criminal charges each time.

The appeals court judges did not rule Thursday, and it is unclear when they will. The judges' questions centered not on the facts of the case but on legal precedents and rules of civil procedure. The hearing Thursday was on the defendants' appeal of the trial judge's decision to deny their motion to dismiss the case.

Rehberg's attorney, Bryan Vroon of Atlanta, argued Thursday that Hodges and Paulk, and later Burke, conspired to fabricate testimony to gain the indictments. Hodges recused himself from the case in May 2005 after The Atlanta Journal-Constitution wrote about the case. But, Vroon said, Hodges admitted he continued to work on the case, which stripped him of his immunity.

"We argue he was not entitled to immunity because his efforts were as an investigator," not a prosecutor, he said.

Political Insider
Your morning jolt: Georgia Public Broadcasting rejects Phoebe Putney documentary

Last year, we told you of an independent documentary that looked at the 2003 clash between two whistle-blowers in Albany, Ga., and the nonprofit Phoebe Putney Health System – southwest Georgia’s largest hospital group.

The film, “Do No Harm,” has political implications. It includes a deal of footage on the actions of then-Dougherty County district attorney Ken Hodges, who is now a Democratic candidate for attorney general. Hodges faces state Rep. Rob Teilhet (D-Smyrna) in a July primary. Hodges leads in fund-raising.

Public broadcasting stations and networks in several states, including South Carolina and Louisiana, have scheduled “Do No Harm” for broadcast. But you will not see it in Georgia – at least not now.

Nancy Zintak, a spokeswoman for Georgia Public Broadcasting, said the statewide network has rejected the film. “The reason that we’re not airing it is basically is it was not balanced,” Zintak said. “It didn’t come to us like a vetted news journalistic program like ‘Frontline.’ It came from an independent, non-journalistic producer. There was no attempt to show another point of view.

“The door is not closed on the film, but as it stands right now, it wasn’t up to standards,” Zintak said.

GPB is a network of nine public TV stations that cover most of the state. We’ve got a call into WPBA-TV, an Atlanta PBS outlet, which could decide separately whether it will air the documentary.

In 2004, Hodges’ office tracked down a series of faxed messages to Albany community and business leaders that challenged the way the hospital group did business. The authors were accountant Charles Rehberg and surgeon John Bagnato, who said they were attempting to draw attention to the lack of charitable care offered by the tax-exempt facility.

Hodges’ office used grand jury subpoenas to obtain phone records that led back to the pair. The district attorney then passed the information to Phoebe Putney, permitting the hospital system to file a civil suit against the whistleblowers. A countersuit was settled out of court.

Hodges, now a member of the Baudino Law Group in Atlanta, says he did nothing wrong. But after his role was publicized, Hodges recused himself from the later criminal prosecution of the fax-senders — charges that were later dropped.

A federal wrongful prosecution lawsuit, filed by Rehberg, the Albany accountant, includes Hodges among its targets. The case makes an appearance before the 11th Circuit Court of Appeals this week.

In the past, Hodges has dismissed “Do No Harm” as propaganda generated on behalf of litigators attempting to target non-profit hospital systems across the country.

“Georgia Public Broadcasting has a long, proud history of airing straight-down-the-middle news stories and thorough, balanced documentaries. They recognize that this movie isn’t one of those. We agree with their decision not to air it,” Hodges campaign spokesman Jonathan Williams said Monday morning in an e-mail.

Not many are currently anxious to add to the discussion. Denise Godoy spoke for “Do No Harm” producer and director Rebbeca Schanberg of Chicago. “The filmmaker respects the [GPB] decision and hopes to work with them in the future,” she said.

Teilhet, Hodges’ Democratic opponent, had no comment.

Also in the race for attorney general are Republicans Sam Olens, the Cobb County Commission chairman, and Max Woods of Macon, a former U.S. attorney for Georgia’s Middle District.

Olens, too, declined comment. “I’m certainly concerned about the ethical implications that have been alleged, but it would be inappropriate to make a comment as I’ve, frankly, not seen the documentary, nor have seen other materials related to it,” he said in a morning phone interview.
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