Justia Professional Malpractice & Ethics Opinion Summaries

Dr. Paulus, a cardiologist at Ashland, Kentucky’s KDMC, was first in the nation in billing Medicare for angiograms. His annual salary was around $2.5 million, under KDMC’s per-procedure compensation package. In 2008, HHS received an anonymous complaint that Paulus was defrauding Medicare and Medicaid by performing medically unnecessary procedures, 42 U.S.C. 1320c-5(a)(1), 1395y(a)(1), placing stents into arteries that were not blocked, with the encouragement of KDMC. An anti-fraud contractor selected 19 angiograms for an audit and concluded that in seven cases, the blockage was insufficient to warrant a stent. Medicare denied reimbursement for those procedures and continued investigating. A private insurer did its own review and concluded that at least half the stents ordered by Paulus were not medically necessary. The Kentucky Board of Medical Licensure subpoenaed records and concluded that Paulus had diagnosed patients with severe stenosis where none was apparent from the angiograms. Paulus had retired; he voluntarily surrendered his medical license. A jury convicted Paulus on 10 false-statement counts and on the healthcare fraud count. It acquitted him on five false-statement counts. The court set aside the guilty verdicts and granted Paulus a new trial. The Sixth Circuit reversed. The degree of stenosis is a fact capable of proof. A doctor who deliberately inflates the blockage he sees on an angiogram has told a lie; if he does so to bill a more expensive procedure, then he has also committed fraud. View "United States v. Paulus" on Justia Law

A former small-town doctor, defendant Joel Miller, was charged with multiple counts of health-care fraud, money laundering, and distributing a controlled substance outside the usual course of professional treatment, as well as one count of making a false statement on an application submitted to the Drug Enforcement Administration. A jury acquitted him on all of the financial charges as well as several of the drug distribution charges, but found him guilty on seven counts of distributing a controlled substance, and one count of making a false statement to the DEA. The district court granted Defendant’s post-judgment motion for acquittal on one of the controlled-substances counts based on an error in the indictment. The court then sentenced him to forty-one months of imprisonment on the six remaining distribution counts, plus a consecutive sentence of nineteen months on the false-statement count, for a total sentence of sixty months of imprisonment. Defendant appealed his convictions and sentence. The Tenth Circuit found no error in the imposition of defendant’s sentence on the six distribution counts; however the Court reversed and remanded on the false statement count. The Court was persuaded that trial court proceedings “broadened the possible bases for conviction beyond those found in the operative charging document. …we are persuaded that the trial proceedings in this case effected a constructive amendment.” View "United States v. Miller" on Justia Law

A former small-town doctor, defendant Joel Miller, was charged with multiple counts of health-care fraud, money laundering, and distributing a controlled substance outside the usual course of professional treatment, as well as one count of making a false statement on an application submitted to the Drug Enforcement Administration. A jury acquitted him on all of the financial charges as well as several of the drug distribution charges, but found him guilty on seven counts of distributing a controlled substance, and one count of making a false statement to the DEA. The district court granted Defendant’s post-judgment motion for acquittal on one of the controlled-substances counts based on an error in the indictment. The court then sentenced him to forty-one months of imprisonment on the six remaining distribution counts, plus a consecutive sentence of nineteen months on the false-statement count, for a total sentence of sixty months of imprisonment. Defendant appealed his convictions and sentence. The Tenth Circuit found no error in the imposition of defendant’s sentence on the six distribution counts; however the Court reversed and remanded on the false statement count. The Court was persuaded that trial court proceedings “broadened the possible bases for conviction beyond those found in the operative charging document. …we are persuaded that the trial proceedings in this case effected a constructive amendment.” View "United States v. Miller" on Justia Law

For several weeks, Redman posed as a psychiatrist at a Chicago medical clinic using the name and license number of Dr. Garcia. He “treated” patients for mental illnesses, and “prescribed” controlled substances. Redman actually did not attend school past the tenth grade. Before commencing employment, Redman provided falsified documentation: an employment application, payroll application, I‐9 Employment Eligibility Verification form, W‐9 form, photograph of an Indiana driver’s license with Redman’s picture, photocopy of an Illinois medical license, photocopy of a medical school diploma, a residency certificate for training in psychiatry, and a photocopy of a social security card. He used online counterfeiting services; he submitted an online Drug Enforcement Administration application and obtained malpractice insurance using false information. He was discovered when the real Dr. Garcia learned that someone had used his medical license number to obtain a DEA registration. A jury found Redman guilty of wire fraud, aggravated identity theft, furnishing false and fraudulent material information in documents required under the federal drug laws, and distributing controlled substances. The Seventh Circuit affirmed his 157-month sentence, upholding the application of two-level enhancements for use of sophisticated means and for conduct that involved a conscious or reckless disregard of a risk of death or serious bodily injury. View "United States v. Redman" on Justia Law

Jansen pleaded guilty to wire fraud, 18 U.S.C. 1343, and tax evasion, 26 U.S.C. 7201. Before sentencing, Jansen’s third attorney (Steinback) withdrew. His new attorney, Beaumont, requested Rule 16 discovery and obtained 42,700 documents. Jansen filed a pro se motion to continue his sentencing proceedings because none of his prior attorneys had requested or reviewed those documents. Weeks later, Beaumont withdrew, citing irreconcilable differences; he was replaced by Richards. Jansen indicated to the court that he wished to withdraw his guilty plea as not “knowing and voluntary” because of ineffective assistance of counsel. Richards also withdrew. The court permitted Jansen to proceed pro se but denied his motion to withdraw his plea and sentenced Jansen to 70 months’ imprisonment with a restitution payment of $269,978 to the IRS. The Seventh Circuit affirmed, remanding the issue of restitution to allow the district court to clarify that its imposition of restitution is a condition of supervised release rather than a criminal penalty. The district court made the sound factual finding that Jansen hired Steinback “to negotiate the best possible plea agreement,” not to go to trial. Steinback formulated a “four-fold” “tactical strategy” that included forgoing investigation and discovery so that such a strategy was objectively reasonable. View "United States v. Jansen" on Justia Law

Adofo Minka was held in direct criminal contempt by the Hinds County Circuit Court for unprofessional and contumacious behavior during the trial of his client which resulted in a mistrial. Minka was fined $100 and ordered to pay the costs of the jury in the amount of $1,350. Minka appealed, arguing: (1) he did not improperly comment during opening statements on a potential sentence his client might receive, which triggered a sua sponte objection from the trial court and was a key basis for the State’s request(s) for a mistrial; (2) his comments did not warrant criminal sanction because counsel have broad latitude during opening statements and closing arguments; (3) the record did not support a finding beyond a reasonable doubt that any of Minka’s comments or conduct constituted criminal contempt; and (4) even if the Mississippi Supreme Court affirmed the trial court’s contempt and sanction order, the monetary fine was $650 more than it should have been; therefore, the sanction amount must be reversed, lowered, and rendered. The Supreme Court found no merit in any of the points of contention argued by Minka on appeal. View "Minka v. Mississippi" on Justia Law

Harold Persaud, M.D., a cardiologist in private practice, was charged with one count of health-care fraud, 18 U.S.C. 1347, 14 counts of making false statements relating to health-care matters, 18 U.S.C. 1035, and one count of money laundering, 18 U.S.C. 1957. The grand jury also returned a forfeiture finding, requiring Persaud to forfeit all property linked to the charges, including $343,634.671 seized from bank accounts associated with Persaud and his wife. At trial, the government presented 34 witnesses, including 11 physicians, eight patients, and four nurses. The defense relied on five witnesses, including an expert cardiologist, two referring physicians, and a coding expert. The jury convicted Persaud on all charges, except for one false-statement count. The jury concluded that the $343,634.67 seized from the Persauds’ bank accounts was forfeitable; the $250,188.42 seized from Persaud’s wife’s account was related to his money-laundering conviction; and Persaud’s scheme generated gross proceeds of $2,100,000. The district court sentenced Persaud to 20 years of imprisonment, a $1,500 special assessment, and restitution of $5,486,857.03, which consists of money damages to be paid to Persaud’s patients, their private insurers, and the government. The Sixth Circuit affirmed. The jury was entitled to accept the view of the government’s experts over those of Persaud’s experts. View "United States v. Persaud" on Justia Law

IAR believed that defendant, its former CEO, had embezzled money. IAR, represented by Valla, sued defendant. Valla, on behalf of IAR, reported the crimes to the Foster City Police. The district attorney charged defendant with felony embezzlement. In response to defendant’s subpoena, Valla produced over 600 documents and moved to quash other requests on attorney-client privilege grounds. Defendant filed another subpoena, seeking documents relating to an email from the district attorney to Valla, discussing the need for a forensic accountant. Valla sought a protective order. Defendant asserted Valla was part of the prosecution team, subject to the Brady disclosure requirement. Valla and deputy district attorneys testified that Valla did not conduct legal research or investigate solely at the request of the police or district attorney, take action with respect to defendant other than as IAR's attorneys, nor ask for assistance in the civil matter. IAR retained a forensic accountant in the civil action, who also testified in the criminal matter, after being prepared by the district attorney. IAR paid the expert for both. There were other instances of cooperation, including exchanges of legal authority. The court found Valla to be a part of the prosecution team. The court of appeals reversed. The focus is on whether the third party has been acting under the government’s direction and control. Valla engaged in few, if any, activities that would render it part of the prosecution team. View "IAR Systems Software, Inc. v. Superior Court" on Justia Law

Icke, a chiropractor, was convicted of sexual penetration by fraudulent misrepresentation of professional purpose. (Pen. Code 289(d)(4)). The jury found that Icke digitally penetrated a client for a sexual purpose during a chiropractic massage. The court of appeals affirmed, rejecting Icke’s argument that the trial court erred in rejecting a proposed jury instruction that would have stated he was not guilty of violating section 289(d)(4) if he penetrated the client against her will. The court found the argument foreclosed by the California Supreme Court’s 2016 decision, People v. Robinson, which held the “unconsciousness” requirement of fraudulent misrepresentation of professional purpose crimes is the equivalent of a lack of consent. Icke also argued his conviction was not supported by sufficient evidence because the victim protested and did not actually believe he was acting for professional purposes at the time of the act. The court held that a victim’s misgivings do not exonerate a defendant under section 289(d)(4) if the evidence establishes that the victim allowed a sexual touching to occur because of a representation of professional purpose. View "People v. Icke" on Justia Law

Acting pro se, Clay Jones sued his former attorney, Alan Whisenand, for legal malpractice and civil rights violations allegedly committed in the course of civil commitment proceedings under the Sexually Violent Predator Act (SVPA). The trial court sustained Whisenand’s demurrer to the first amended complaint without leave to amend on the grounds that: (1) Jones failed to allege actual innocence of all charges in the underlying criminal case or post-conviction exoneration; and (2) Jones failed to show that Whisenand was a “state actor” acting “under color of state law.” After review, the Court of Appeal concluded that the actual innocence requirement did not apply to SVPA proceedings. However, public policy considerations underlying the actual innocence requirement (namely, judicial economy and the desire to avoid conflicting resolutions) compelled the conclusion that alleged SVPs should not be able to pursue causes of action for legal malpractice in the course of their SVPA proceedings unless and until such proceedings have been terminated in their favor. "[O]ur conclusion does not leave alleged SVPs without a remedy while proceedings are ongoing, as they may still seek relief for ineffective assistance of counsel in the SVPA proceedings themselves. Jones does not, and cannot, allege that the pending SVPA proceedings have been terminated in his favor. We therefore conclude the trial court properly sustained Whisenand’s demurrer to Jones’s cause of action for legal malpractice." The SVPA proceedings against Jones were still pending, raising the possibility that he might be able to comply with the favorable termination requirement in the future. Accordingly, the Court concluded the demurrer should have been sustained with leave to amend. With respect to his civil rights claim, the Court concluded the trial court properly sustained the demurrer without leave to amend. View "Jones v. Whisenand" on Justia Law