AHLA's Speaking of Health Law

The Lighter Side of Health Law – October 2018

October 26, 2018 AHLA Podcasts
AHLA's Speaking of Health Law
The Lighter Side of Health Law – October 2018
Show Notes Transcript

AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments. Sponsored by Coker Group.

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Speaker 1:

Hi, I'm Norm Taler, host of the A HLA podcast series, the Lighter Side of Health Law, sponsored by Coker Group. I hope you enjoyed this month's edition. Overplaying Your Hand. A medical malpractice case in Arizona reminds lawyers of the perils of overplaying your hand. Helen Sharf hired lawyer, Jeff Kogan, to file a med mouth suit against the surgeon who she alleged was responsible for her husband Gerald's death. Jeff filed the med mal suit. So far so good. It's what Jeff did next that got him in hot water. He amended the suit to allege that the surgeon was not merely negligent in causing Gerald's death, but that he caused a quote intentionally and maliciously. The surgeon fired back suing for malicious prosecution and abusive process, noting that Jeff suit effectively accused him of committing homicide. The judge ruled in favor of the surgeon finding Jeff and Helen liable for malicious prosecution and abusive process. When the question of damages went to the jury, they ruled that Jeff owed the surgeon about$8 million in compensatory and punitive damages while as client Helen owed nothing. The case is Trabuco versus Kogan Mojave, superior Court, Arizona. You can't blame a guy for trying. When Dr. Phil Fisher applied to Admiral Insurance for medical malpractice coverage, he responded no to the question whether he was aware of anything that might result in a malpractice claim. You might say his answer was less than candid. Since just six months earlier, the DEA had conducted a raid investigating him for the overdose death of 14 people and for illegally obtaining, distributing and using drugs. And since five months earlier, the State licensing Board had investigated him for unlawful possession of drugs and engaging in sex with multiple clients, an investigation that would result in the loss of his medical license. Admiral issued the policy and before the ink was dry, Dr. Phil was sued for malpractice and the wrongful death of two patients, Admiral Counterclaimed to rescind the policy based on fraudulent misrepresentations in Dr. Phil's application, the trial court CID with Dr. Phil. That's why the title of this piece is you Can't Blame a Guy for Trying. It almost worked as I almost worked because unfortunately for Dr. Phil and maybe the plaintiffs too, west Virginia's highest court siting with Admiral and reversed and remanded. The case is Admiral Insurance versus Fisher West Virginia who says crime doesn't pay from earliest childhood. We've been told crime doesn't pay, but here's a case that makes you wonder. Michael drove it, owned a hospital in Long Beach, California. When he was charged with running a 15 year long Medicare kickback scheme, it took him only a matter of weeks to plead guilty. So what was the scheme? Well, Michael bribe doctors to refer patients to his hospital for spine surgery. His going kickback rate was$15,000 for a lumbar fusion and$10,000 for a cervical fusion. How successful was the scheme? Well, his hospital's fraudulent billings came to Are you sitting down 580 million

Speaker 2:

In return for the 40 million Michael paid in illegal kickbacks. So let's see, 580 million in billings, less. 40 million in kickbacks is a net of$540 million. Now let's test. Our crime doesn't pay theory. What was the cost of getting caught? Well, Michael's sentence was 63 months in jail, half a million dollar fine and a 10 million forfeiture Order. The forfeiture in fine bring the income from the scheme down to 529.5 million in return for 63 months in jail. That's about 8.4 million in income for each month and he gets free room and board. Not a bad deal for Michael. The case is US versus Droit Central District California making a bad situation worse. At least since the Watergate scandal, it's been axiomatic that a coverup can be more damaging than the original crime. Here's a case demonstrating a variation on the axiom, namely that fleeing after you've been caught can be more damaging than the crime itself. Former Kentucky attorney Eric Kahn, engineered a decades long social security disability scam that defrauded the government of a whopping 550 million when he was indicted on 18 counts. The government agreed to dismiss all 18 in return for a guilty plea to two charges of providing false medical information to Social Security. He was even given home detention while awaiting sentencing. Not a bad deal for a guy who scammed the government of 550 million. Was he satisfied with the deal? Well, no. While awaiting sentencing, he disabled his ankle monitor fled across the Mexican border into Central America where he was apprehended. Six months later in a Honduran Pizza Hut, eating a personal pan pepperoni Wacom was in Central America. He was sentenced to 12 years on the two charges. 12 years is a long time, but not as long as the 15 additional years he got for fleeing the country. That's right. His sixth month Central American visit cost him 15 years in the slammer more than he got for the 550 million scam. It will be the year 2045 when his prison sentence ends and Michael Kahn, the Khan becomes Michael Kahn the ex-con. The case is US versus Khan Eastern District Kentucky Practice Tip of the Month. This month's practice tip concerns psychiatric records. The tip is if your client sues you for malpractice, do not file a motion asking the court to declare her unfit to testify due to her psychiatric history and above all, do not attach her mental health records to the filing. Connecticut attorney Jason Pearl failed to follow this practice tip when former client, Veronica Barocco sued him with the result that Jason was suspended from the practice of law for two years. The case is Office of Chief Disciplinary Council versus Pearl Judicial District of New Britain. Well that's it for this month's edition of the Lighter Set of Health Law. I hope you enjoyed it. Check your A H L A Weekly and Connections Magazine for the next edition.