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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: Friday, November 23, 2012
Article comment by: @ Frustrated In Blythe

Well said! Let me add that I was very disappointed that Dr B was a signatory to the propaganda letter on Hospital letter head. I had always felt that he would always come out on the side of good and honest. I have friends that were also amazed Dr. P was also a signatory.

Posted: Thursday, November 22, 2012
Article comment by: Frustrated In Blythe

Doctors, surgeons and hospitals are great when they can make you better. But don't be naive. If they can take you, your family, friends, or even charitable organizations last dime in exchange for their help they will. And they will do it with the best bedside manner their training has instilled in them. Remember, they are smiling because you are a revenue source. Other countries with nationalized healthcare don't allow healthcare institutions to blackmail you by holding your health and that of your family and friends hostage. America does and these institutions spend millions every year to convince us that nationalizing healthcare would destroy it. That is a lie to protect their revenue streams. Open your accounting books doctors and surgeons for public and legal review. Open your billing claims to the proper investigating entities. Show us how and how much you have gleaned from our failing healthcare industry. Everyone has a right to make a good living but at some point ethical, moral, and probably legal boundaries have been crossed. We deserve to know. After all aren't you all supposed to be being paid to serve this community. Isn't that what you all present yourselves as, good upstanding members of the community. What are you trying to hide?

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