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11/22/2012 5:00:00 PM
Sahlolbei attorneys file demurrer in response to suit

Marty Bachman

BLYTHE - Lawyers for Palo Verde Hospital Surgeon Hossain Sahlolbei and his company, Pars Surgery, Inc., contend that a hospital lawsuit accusing Sahlolbei and Pars of fraud, unfair and deceptive business practices, breach of fiduciary duty and unjust enrichment among other charges fails to establish a valid cause of action.

Hospital officials have charged Sahlolbei and Pars with entering into a contract with the hospital's anesthesiologist, Dr. Brad Barth, to provide services to the hospital without disclosing the contract to hospital officials who also entered into a contract with Barth.

Attorney John A. Mills of the Los Angeles firm Fenton Nelson, said the demurrer the firm filed seeks to show the court the hospital's complaint fails to set forth a valid cause of action.

"This demurrer is not our clients' formal Answer to the complaint and should not be interpreted to mean that our clients admit any of the allegations in the complaint," Mills wrote in an e-mail to the Times. "If the demurrer succeeds, the complaint may be dismissed and we will not have any need to file an Answer."

The original complaint, filed in October, states that in September 2009, Sahlolbei told hospital officials he could help solve the anesthesia service problem by bringing back a former hospital anesthesiologist, Dr. Brad Barth.

"Sahlolbei convinced hospital officials that only he could bring Barth back because of Barth's aversion to hospital administration and that Sahlolbei would be responsible for negotiating the contract terms," the complaint reads.

The demurrer argues that hospital officials knew all along about the contract and that Sahlolbei did not prevent the hospital from negotiating directly with Barth.

"To the contrary, the Hospital directly communicated with Dr. Barth concerning the terms of the contract, as reflected in the Board of Director's public meeting on October 8, 2009," the demurrer contends.

The demurrer also argued that the hospital should have no expectation of Sahlolbei having fiduciary duty to the hospital to disclose his contract with Barth because of the history of contentious litigation between the two.

"The idea that Dr. Sahlolbei became the Hospital's fiduciary is laughable," the demurrer states.

The demurrer also stated that the hospital had a duty to investigate Sahlolbei's "alleged representations" and is barred by the three-year statue of limitations for fraud claims. It further goes on to accuse the hospital of failing in its duty to see that Barth's contract with the hospital was in the best interest of the public health of the community.

"In light of this, it simply is not feasible that the Hospital was so vulnerable - a necessary predicate for finding a fiduciary relationship - that it would have ceded control over its contracting affairs to Dr. Sahlolbei, the person who allegedly harassed the hospital's CRNAs and threatened to shut down the hospital if his demands were not met," the demurrer reads.

The demurrer states that Sahlolbei's interest and goal in acting at the intermediary in Barth's contract negotiations with the hospital was to obtain an anesthesiologist that he wanted to work with. The demurrer also states that Sahlolbei was not a party to the hospital's contract with Barth, therefore he could not be liable "for deceit in the making of said contract" and that Barth had not been accused of fraud.

"Because non-parties to a contract cannot be liable for the tort action of deceit in connection with the making of the contract, the First Cause of Action fails as a matter of law," the demurrer states.

In response to the hospital's charges that Sahlolbei and Pars violated anti-kickback statutes, the demurrer states that to violate any of these statutes, Sahlolbei must have received the alleged payments from Barth as consideration to induce him to refer patients to or purchase health care services from Barth.

"However, the complaint is devoid of allegations that Dr. Barth actually receives patient referrals from Defendants," the demurrer reads. "The contract between Pars Surgery and Dr. Barth does not give Dr. Barth exclusivity; to the contrary, it provides that the parties are not required to refer patients to each other. Moreover, the Hospital alleges that Defendants 'did nothing' for the payments it received from Dr. Barth, thereby negating the inference that Defendants made referrals to Dr. Barth in exchange for the payments."

The demurrer finally argues that the hospital's complaint has failed to prove its case of a fiduciary relationship with Sahlolbei and them therefore it has no right to an accounting of Sahlolbei or Pars Surgery's financial records.

Palo Verde Hospital officials said they had no comment on the demurrer at this time.

A PDF copy of the demurrer, the original hospital complaint and a judicial notice in support of the claim are available below.

Download Sahlolbei's demurrer

Download Sahlolbei's notice in support of demurrer

Download Download the lawsuit Palo Verde Healthcare District v. Sahlolbei

Download the exhibits in Palo Verde Healthcare District v. Sahlolbei

Related Stories:
• Former DA warns board members of potential conflicts
• Hospital receives 'F' grade from patient safety advocacy group
• Medical staff seeks to restrain Healthcare District Board from contracting out surgical services
• Healthcare District files lawsuit against hospital surgeon, Hossain Sahlolbei

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Reader Comments

Posted: Tuesday, November 27, 2012
Article comment by: Frustrated In Blythe

For the record I have always been fortunate to find work where insurance offered thru employment covered the bulk of the my costs. In those cases wher I was between jobs I paid for cobra to continue insurance. In those periods I wasn't covered early in life where I had no coverage I was very lucky and never got sick or hurt. My family and friends who haven't been as lucky always had their own insurance but it's not much help when long term care was needed or specialized care when their copays were 20 to 30 percent of bills that ended up being hundreds of thousands of dollars. The elderly, sick, children and even infants can't fight for themselves in our healthcare system. They don't have the money, power, or news worthy stories to get the attention they need to change the system. They are consistently overlooked and dismissed in our society because our society chooses not to look at ourselves in the mirror, realize what we are, and choose to be better.

Posted: Tuesday, November 27, 2012
Article comment by: EL PICA BUYAS

@Tweetie Bird I think the purry cat got you. I have to agree with Frustrated in Blythe. He makes a more compelling argument here. At times you were doing good. But then, you would go way off base.

Posted: Tuesday, November 27, 2012
Article comment by: tweetie Bird

No, what I am sayin is that if u want it, pay for it, don't expect others to pay u'r way for u. we are still watin for u to tell us who pays for urs.

Posted: Tuesday, November 27, 2012
Article comment by: Frustrated In Blythe

@ tweetie. Why am I Frustrated? I've seen to many people pushed out of hospitals too soon because there was no profit to be made. Mostly elderly, children, and infants who were at the mercy of our failing healthcare system. It's failing because personal economics of those in power (insurance companies doctors surgeons hospital administrators investors owners) use their influence to grab as much of the healthcare pie for themselves to the detriment of the sick, elderly, and defenseless. Visit emergency rooms. Listen to the horror stories of the nurses, therapists, and patients. Go to convalescent homes and watch patients be shuffled in and out until the next Medicare check arrives. Watch patient conditions deteriorate as care is withheld until funds are available to pay huge disproportionate care cost demanded by doctors hospitals and care providers. Go to the overwhelmed an understaffed emergency rooms where people literally can wait days to be seen or even die waiting. It happens every day in every city across the country. It's happened to my family, friends, and acquaintances. And it is getting far worse far quicker every year. It is a national disgrace.

Posted: Monday, November 26, 2012
Article comment by: Frustrated In Blythe

@ tweetie.... So your answer is that only the wealthy get healthcare. Everyone else gets the bare minimum until they can no longer afford anything or they die. So much for a "community" hospital. Should it just be renamed "opportunists" hospital? It would be enlightening to the community if they were clearly informed just how much income the doctors make from the hospital not only through the various fees in their contracts but also through the privliges of free or discounted use of hospital facilities. Better yet what exactly is the value of the contracted relationship with the hospital to each of these doctor's private practice revenues. Just how badly would their income be impacted if their monopoly over the hospital operations was removed. What if other doctors and surgeons with a more community based focus rather than a focus on their own personal financial gain could be found. They may not be breaking the letter of the law, but they sure don't have the best interests of the community at heart. Maybe the community should just close the hospital and have "doctors without borders" come to town a couple times a year. Yes we live in the wealthiest most powerful country the world has ever seen but organizations like doctors without borders are serving communities across our country everyday. That's where we are headed of we don't change it.

Posted: Monday, November 26, 2012
Article comment by: tweetie bird

why r u frustrated? (deleted) What r u going to do when the workers get fed up and cut off u'r pay? u were asked who pays for u'r medical but u ain't answering. Publicly accusing some 1 of fraud without proof is liabel. u r walking on thin ice. u and u'r supporters need to take a course in basic economics to learn the source of income.

Site Administrator's note: A portion of this comment has been removed because it violated our Terms of use Agreement. Personal attacks are not tolerated, and are a direct violation of these Terms of Use.

Posted: Sunday, November 25, 2012
Article comment by: Frustrated in Blythe

Healthcare in America is quickly becoming available to only the very wealthy who can afford it. Costs have been driven through the roof by doctors, hospitals, and insurance companies who all have demanded more income for their own pockets. So things like copay requirements, coverage caps, higher deductibles, HMOs offering minimal coverage, and endless fees added to hospital bills have made healthcare for most Americans nearly cost prohibitive. It's a sham in a country that has the highest per capita spending than any other nation in the world yet so many can't afford basic coverage. That may not mean much to those wealthy enough that it is not of concern to them, but what about the growing majority who are priced out of healthcare coverage. Do we just write off the elderly, the sick, the long term care patients, and the ever growing poor class in this country so the doctors, insuance companies, and hospitals can make as much as they possibly can? Do we just let them die? Don't be fooled. The death panels already exist in every insurance company in America, who determines what the will cover what they won't and when you may get treatment. Of course you may be dead then so they can stop those payments and pocket the cash.

Posted: Sunday, November 25, 2012
Article comment by: @tweetie bird

Are you serious. People may have the right to make all they can but thats the problem with our economy and half the cities across the United States! Including ours! People with OUTRAGES salaries. Every company should have a cap on salaries. Including doctor's. Do you not know what happened on wall street!!

Posted: Sunday, November 25, 2012
Article comment by: Frustrated In Blythe

Site Administrator's note:Please keep comments succinct; 300 words or less is optimal. Comments that are excessively verbose, rambling or too long for reasonable review may not be posted.

Posted: Sunday, November 25, 2012
Article comment by: @ tweetie bird

"Every 1 has the right in this country to make all they can, unlimited."

That is as long as they do not violate the law or commit FRAUD!

Posted: Saturday, November 24, 2012
Article comment by: tweetie bird

frustrated in blythe, this won't make the cut but are U willing to open U'r books for public and legal review? Open U'r expense accounts for the general public and the IRS? tell who pays for U'r medical bills? the doctors and surgons pay $1,000's to go to school 8 to 10 years to get to be a doctor. Every 1 has the right in this country to make all they can, unlimited. U want socalized medecine go to canada, england, cuba or venzuela and see just how good it is. Ask a canadian snow bird to explain it to you. Do U not present U'r self as a upstanding member in the community? U r being paid to serve the community just as much as the doctors and surgons are, so what r U trying to hide?

Posted: Saturday, November 24, 2012
Article comment by: Booger Red

Site Administrator's note: A portion of this comment has been removed because it violated our Terms of use Agreement. Personal attacks are not tolerated, and are a direct violation of these Terms of Use.

Posted: Friday, November 23, 2012
Article comment by: J S

About time he's being investigated!!

Posted: Friday, November 23, 2012
Article comment by: @ long time blythe resident

There will be peace when Justice is Done!

Posted: Friday, November 23, 2012
Article comment by: long time blythe resident

let there be peace on earth, and let it begin with me- yes i know it's easy to say but , we can do--

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