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.
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.
Hi, I'm Norm Taber, host of the A H L A podcast series, the Lighter Side of Health Law, sponsored by Coker Group. I hope you enjoyed this month's edition motion to have it both ways. Health law litigators may want to add a new motion to their form books. I came across it in a recent Medicaid fraud case. I call it the motion to have it both ways. Florence and Michael Burundi were convicted of defrauding the DC Medicaid program, sentenced to 10 and seven years respectively, and ordered to pay 80 million in restitution on appeal. Their lawyer argued that the convictions should be overturned. Why? Because the government gave him an exhibit at the last minute and he needed more time to figure out a response. Had he asked for more time? No. Why not? Well, more time would delay the proceedings and he didn't wanna delay the proceedings. So there you have it. If you need more time, don't ask for it. Then if you lose the case, you can appeal because you didn't get the extra time you didn't ask for. You can't make this stuff up. The case is us versus und dc Circuit the$200 million lie. Oh, what a tangled web we weave when first we practiced to deceive. Some people think Shakespeare said that. Others say Robert Burns. Actually, it was Sir Walter Scott in the poem Marmion and the message of the quote is true. A single lie can spin out of control creating a web of deceit bigger and more tangled than the liar could have imagined. Just ask Pharmaceutical giant Merkin company on March 17th, 2014. Its patent attorney Robert Duret told a lie in order to sit in on a conference call with another pharma company. He said he was part of a firewalled. Merck contingent allowed to hear the other company's trade secrets, but he actually wasn't. The web of deceit started with that lie. It grew when he acquired trade secrets during the call. It grew more when he used the secrets to file patent claims for Merck. It grew even bigger when he created a false cover story to pretend he got the secrets from public sources. Four years later, the web completely ensnarled Merck's patent infringement suit against the other company. The jury awarded Merck$200 million for the infringement, but the company argued that Merck had unclean hands for its underhanded business practices. And because Robert continued to lie in his testimony, the court was so disgusted by the web of deceit that it ruled that Merck had forfeited its right to enforce its patent infringement claim and overturned the 200 million award. The federal circuit affirmed and it all started with a single lie. The case is Gilead versus Merck. Federal Circuit custody battles in the 21st century is no surprise when a divorce involves a custody fight or when the fight gets ugly. But the post divorce battle between Ellen Steele and former husband Tom Smith is noteworthy because it's not over children or even pets. It's over ownership of a drug patent. Ellen's lawsuit says that in happier times when she and Tom were still married, they created two jointly owned companies with Ellen in control of one and Tom the other. Ellen says that
Speaker 2:After the divorce, Tom falsely claimed that his company owns a drug patent that really belongs to her company and he defrauded a third company into entering into a licensing agreement for that patent. When the third company discovered the deception, it sued Tom for fraud. Now, according to Ellen, Tom is trying to settle the suit by entering into an agreement full of misrepresentations and still purporting to license the patent. So Ellen is suing Tom to bar him from entering into that new agreement and most important to get a ruling that her company is the rightful owner of the patent. Maybe the judge will be like Solomon and propose to cut the patent into the case is St. James Associates versus Smith, Delaware, Chancery Court ambulance service and other learned professions. Who knew ambulance service is considered a quote learned profession up there with medicine and law, at least in New Jersey. When John Cullum passed out at the gym, the ambulance bill was$1,750 plus mileage to the hospital, no word on whether he passed out again when he got the bill, when Halla had he fainted and the same ambulance company assessed her, the bill was$1,500 plus$14 for mileage to the hospital. The mileage fee was especially irritating because Halla had declined to go to the hospital when the ambulance company sued John and Halla for payment. They counterclaimed under the State Consumer Protection Act on behalf of 36,000 people overbuild by the company, but the Superior Court affirmed dismissal of the counterclaims holding that ambulance service is a learned profession and therefore exempt from the act. The rationale is that ambulance service is regulated by the State Department of Health, which includes oversight of charges. But Hall's$14 mileage fee was different. The company graciously admitted that charging for mileage to the hospital was improper for people they didn't take to the hospital. That issue survived Dismissal. The case is Atlantic Ambulance versus Cullum, New Jersey Superior Court. Yes, Virginia Medical judgment can be false. We normally think of medical judgment, actually any kind of judgment as being good or bad or somewhere in between. We don't normally think of medical judgment, even unsound medical judgment as being false. But a recent 10th Circuit opinion says that it can be false. That if a surgeon operates outside recognized guidelines and builds Medicare, the bill may violate the False Claims Act. Why? Because the Medicare bill certifies that the services were reasonable and necessary. If that certification is objectively false, it's a violation. And to determine whether it's objectively false, the fact finder looks to industry guidelines. What are the practical implications? First, medical judgment is not necessarily a defense. Second, the fact that the patient is satisfied may not matter. Anyone who knows about the surgery is a potential plaintiff with a big incentive to sue up to 30% of the government's recovery, which can be three times the Medicare bills plus over$20,000 per bill. Third, and this is something to think about. Medical malpractice coverage probably won't provide any help. And one last thing. If the surgeon goes down, he may take the hospital with him because the hospital will have submitted Medicare bills for the same procedures. The case is US xra L Poff versus St. Mark's Hospital 10th Circuit. The enemy of my enemy is my friend. Here's a case to look at if you doubt the truth of the aphorism, the enemy of my enemy is my friend. Crystal Evans sued Dr. Peter DePalo for medical malpractice. At that point, it would be safe to call Crystal and Peter Enemies. But then Crystal won a 4 million verdict and Peter had only$1 million of insurance. So we sued his insurance company for failing to settle the case for a million dollars before trial. Now Peter and his insurance company are enemies. That makes Peter and Crystal friends. Why? Because the insurance company is now Crystal's enemy too. She wants it to lose so that Peter can collect the$3 million he still owes her. That was the reasoning of the appellate court when the insurer tried to subpoena communications between Crystals and Peter's lawyers sent after the 4 million verdict communications before the verdict when Crystal and Peter were still enemies are not privileged. But communications after the verdict are privileged under the common interest doctrine because Crystal and Peter now share a common enemy. The case is DePalo versus New Jersey Physicians United Superior Court of New Jersey. Well, that's it for this month's edition of the Lighter Sight of Health Law. I hope you enjoyed it. Check your A H L A Weekly in Connections Magazine for the next edition.