Dallas Lawyer Who Planted Niece in Government Job As a ‘Mole’ Gets 10-Year Max for Medical Fraud

Dallas lawyer Tshombe Anderson had his niece obtain an internship at the U.S. Labor Department so she could snoop through claims files, learn the system and act as a “mole,” prosecutors say.

The Dallas Morning News reports that on Thursday a U.S. district judge sentenced Anderson to the maximum punishment of 10 years in prison and ordered him to pay more than $26 million in restitution minus what the government has already collected from him.

“Anderson stole patient information from over 200 injured federal workers and then used the information to fraudulently bill OWCP [workers’ comp], enriching himself and others with taxpayer dollars intended for the treatment of injured federal workers,” said Steven Grell, Special Agent in-Charge for the Dallas Regional Office of the U.S. Department of Labor’s Office of Inspector General.

Read the Dallas News article.



Making Opioid Antidote Widely Available a Key Step in Treatment

Dallas attorney Jeffrey Simon says U.S. Surgeon General Jerome Adams’ call for more Americans to carry the opioid antidote naloxone is one that could save countless lives, and play a key role in addiction recovery.

“Naloxone should be widely available and at the ready for emergency medical personnel, people who are opioid addicts, or people who live with opioid addicts. I equate having naloxone at the ready to having a CPR kit at the ready — both can save lives as emergency care if administered in time,” says Simon of Simon Greenstone Panatier Bartlett, P.C.

“Unfortunately, it’s easy for anyone to overdose on opioids, so we are not just talking about saving the lives of addicts. But when we speak of opioid addicts, we need to remember that addiction is a disease. We want addicts to get into recovery, and if they die from an overdose, that can’t happen. Keeping them alive long enough for them to make headway with addiction treatment is crucial, and naloxone is often a key component to achieving that goal,” he says.

Simon Greenstone and co-counsel collectively represent more than 40 counties in Texas as well as other states in opioid litigation.



The Court is Tiebreaker When Parents Can’t Agree

America’s favorite sport is at the center of a legal battle between divorced Pittsburgh parents. John Orsini wants their youngest son, who has a history of concussions, to stop playing high school football out of a concern for his safety. However, his ex-wife says their son understands the risks and supports his choice to keep playing. Since the divorced couple cannot agree on terms, the fight has ended up in family court, where a judge has preliminarily allowed the boy to continue to play.

In a post on the website of Androvett Legal Media & Marketing, Dallas family law attorney Lon Loveless of Orsinger, Nelson, Downing & Anderson, LLP says when divorced parents cannot agree on issues involving their children, the judge in the case is asked to serve as the tiebreaker. Ultimately, he says, the decision will come down to what is best for the child.

Loveless explains:

“Due to the teen’s past concussion history, there is obviously an increased concern about him continuing to engage in contact sports. Although the parents want to be able to make this decision, because they cannot agree, this is a decision that will be left to the court. Even though he is 17, he is still considered a minor and therefore must abide by the court’s decision, but it has been my experience that because of his age a judge will most likely consider the boy’s input in making his ruling. But ultimately, the paramount issue for the court is what is in the best interest of the child. The court will undoubtedly seek input from medical professionals about the likelihood, and potential long-term impact, of another head injury. That input, not the wishes of either parent, will likely carry the most weight in this case.”

Monica B. Wilkinson Appointed to Lead Dykema’s Health Care Practice Group

Monica B. Wilkinson, a member in Dykema’s Detroit office, has been appointed leader of the firm’s Health Care Practice Group. She takes over for Maria Abrahamsen, who held the role for the previous six years.

Wilkinson has more than 30 years of professional experience in health care working with hospitals, physicians, managed care organizations, and nonprofit foundations. She has led cross-functional teams of legal, regulatory, compliance, operations and development professionals. Prior to joining Dykema in 2013, Wilkinson served as Senior Vice President, Assistant General Counsel and Assistant Secretary at the Detroit Medical Center, a multi-hospital academic medical center in Southeast Michigan.

Wilkinson focuses her practice on regulatory and compliance matters, complex contracting issues, medical staff matters, research, and patient care issues. She works with hospital systems, physicians, and a variety of post-acute providers.

Wilkinson is a member of the American Health Lawyers Association and the State Bar of Michigan Health Care Law Section, where she served as Chair in 2010-11. She also sat on the Legal and Operational Policy Committee of the Federation of American Hospitals.

Wilkinson received a J.D. from Georgetown University Law Center and a B.A. from Michigan State University.



Plaintiff Lawyers See Nationwide Settlement As Only End For Opioid Lawsuits

Lawyers who met in a federal courtroom in Cleveland to discuss a settlement of opioid litigation faced the difficult task of crafting a deal that will not only pay their clients — mostly towns and cities — but include states and even the federal government while spreading the cash evenly across the country, according to Forbes.

Contributor Daniel Fisher writes that most of the attendees were private lawyers who have signed contingency-fee contracts with municipal clients.

He adds that “the sheer complexity of the litigation raises questions about how the parties will craft an agreement that ends the threat of further lawsuits against the industry while distributing cash to all the varied entities who have sued.”

But the situation for the self-funded private lawyers is complicated by the involvement of state and federal claims on some of the expected settlement funds.

Read the Forbes article.



Berkshire’s National Indemnity Ordered to Pay $43 Million for Asbestos Settlement

Berkshire Hathaway Inc.’s National Indemnity Co. has to pay more than $43 million of Montana’s asbestos-related settlement costs, a state judge has ruled. according to a MarketWatch report.

Reporter Nicole Friedman explains: “Montana had reached a $43 million settlement in 2009 with people injured by asbestos at a vermiculite mining operation in Libby, Mont. The victims claimed the state had knowledge of unsafe conditions at the mine for decades and failed to protect workers.”

National Indemnity  provided general liability insurance to the state at the time of the alleged exposure, but it had argued those insurance policies didn’t cover the asbestos-related claims.

Read the MarketWatch report.




Dear Employer, You Could Owe the IRS Millions of Dollars

The first batch of employers are getting estimates from the IRS of penalties they owe for not providing health coverage to employees in 2015. Some of the estimates are in the millions, reports Bloomberg.

Kristen Ricaurte Knebel writes that the IRS won’t say how many “226-J” letters have gone out or who’s getting them.

“But some practitioners expect Industries like trucking, restaurant, and staffing to see a high proportion of them,” she explains. “That’s because there is a high turnover rate inherent in those industries, which makes it challenging to keep track of workers, Alden J. Bianchi, a member at Mintz, Levin, Cohn, Ferris, Glovsky & Popeo PC in Boston, told Bloomberg Law.”

The Affordable Care Act in 2015 required employers with 100 or more full-time employees to offer minimum essential coverage to at least 70 percent of full-time workers. Failure to do so could result in a penalty of $2,080 for every full-time employee, with penalties sometimes reaching $10 million.

Read the Bloomberg article.



Health Care Lawyer Joins Foley in Los Angeles

Foley & Lardner LLP announced that Eric Cheung has joined the firm’s Health Care practice as of counsel in the Los Angeles office.

The firm said Cheung is a health care transactional and litigation lawyer whose practice focuses on regulatory compliance, hospital operations, mergers and acquisitions and restructuring. He handles matters involving physician alignment models, medical staff and licensure issues, health plans, accountable care organizations and labor issues, including physician recruiting and hiring. Cheung represents clients across the health care industry, including hospitals, medical groups, physicians, diagnostic imaging centers and dialysis centers, the firm said.

“We’re eager for Eric to join us,” said Larry Vernaglia, chair of Foley’s Health Care practice. “His vast litigation and transactional experience is a valuable asset to our growing practice. We welcome his perspective as we continue to navigate the health care industry’s complex legal landscape on behalf of our clients.”

The firm said Cheung is familiar with federal and state regulatory compliance issues concerning anti-kickback, self-referral and HIPAA laws, as well as risk management and litigation avoidance. He also has a background in biology which allows him to maintain an interest in the biotechnology issues that can potentially alter and transform health care and delivery and payment systems.

“Eric’s unique insight on an array of health care issues and his involvement with the California health care industry will be incredibly helpful to our clients in Los Angeles, across California and nationally,” said Jeff Atkin, managing partner of Foley’s Los Angeles office. “We’re happy to bring him on board.”

Cheung is a member of the California Society for Healthcare Attorneys, the Los Angeles Bar Association and the American Bar Association.

Prior to joining Foley, Cheung was a partner at Ervin Cohen & Jessup LLP.



Company Blames Gibson Dunn in Aetna HIV Settlement Notice Fiasco

A day after Aetna sued the claims administrator Kurtzman Carson Consultants for exposing confidential medical information about Aetna clients in a settlement notification, a KCC subsidiary brought a new suit blaming Aetna and its lawyers at Gibson Dunn & Crutcher for failing to protect the privacy of Aetna customers, according to Reuters.

The underlying case is based on the mailing of prescription notices sent to Aetna insureds. Those mailings by KCC were in envelopes that included transparent windows that displayed text including the words  “when filling prescriptions for HIV medications.”

KCC now claims that “Aetna and Gibson knew that windowed envelopes were being used in the mailings in question.” The law firm is not named as a defendant, but the firm’s actions on Aetna’s behalf are mentioned throughout the complaint, writes Alison Frankel.

Read the Reuters article.




Usual Suspects: MDL-Experienced Lawyers Flock to Opioid Litigation for Possible Big Payday

Pills - medicineThere will be a lot of familiar faces in U.S. District Judge Dan Polster’s courtroom in Cleveland on Jan. 31, when lawyers gather for a hearing on multidistrict litigation against the nation’s opioid manufacturers and distributors, writes Daniel Fisher, a contributor for Forbes.

“The prospect of the biggest payday since the $200 bill­­ion tobacco settlement in 1998 has drawn many of the same plaintiff lawyers who appear again and again in big tort cases over everything from VW diesels to Vioxx to the BP Deepwater Horizon disaster,” according to Fisher.

Some of those firms include Simmons Hanly Conroy, the Lanier Firm, Seeger Weiss, Lieff Cabraser, Motley Rice and Weitz & Luxenberg.

Read the Forbes article.



Whistleblowers’ Lawsuit Leads to Massive Medical Fraud Settlement

What started seven years ago as a whistleblower lawsuit filed by two Charlotte-area doctors ended Tuesday with two emergency room physicians groups paying federal and state governments more than $33 million to avoid going to court, according to a report by The Charlotte Observer.

“The payments cap off longstanding allegations of a vast medical-fraud conspiracy between a major hospital chain and the physicians groups that bilked federal and state healthcare programs in North Carolina and five other states out of millions of dollars,” writes Michael Gordon.

He explains that prosecutors allege that EmCare physicians took kickbacks and other inducements from Health Management Associates, a now defunct chain of acute-care hospitals, to recommend that their patients be admitted to HMA hospitals rather than receive outpatient care. Then the doctors would order expensive and unnecessary tests, resulting in Medicare and Medicaid reimbursements to the hospitals.

Read the Observer article.



J&J, Bayer Ordered to Pay $28 Million in First Xarelto Loss

Johnson & Johnson and Bayer AG are responsible for a woman’s injuries tied to the blood-thinning drug Xarelto and must pay almost $28 million in damages, jurors concluded in the companies’ first loss at a trial over the medicine.

Bloomberg Technology reports that the plaintiff said she took Xarelto, sold by J&J’s Janssen Pharmaceuticals unit, for more than a year before being hospitalized in 2014 with gastrointestinal bleeding she blamed on the drug.

The jury in Philadelphia on Tuesday ordered J&J and Bayer, which jointly developed the product, to pay $1.8 million in actual damages and $26 million in punitive damages.

“The companies still face more than 21,000 patent suits over Xarelto, which has been linked to at least 370 deaths, according to U.S. Food and Drug Administration reports. Patients have said that Xarelto can cause uncontrollable bleeding and that Bayer and J&J failed to provide an antidote. Some also claim the companies failed to properly warn about the drug’s risks,” according to Bloomberg’s Jef Feeley and Margaret Cronin Fisk.

Read the Bloomberg article.



Former HHS, Office of Inspector General Senior Counsel Joins Berkeley Research Group

Berkeley Research Group announced that Kristen Schwendinger has joined the Health Analytics practice in the firm’s Washington, DC, office and will focus on Corporate Compliance and Risk Management.

She joins BRG from the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) and has significant industry experience across provider and supplier entities. She will focus her consulting practice on pharmaceutical, biotech and medical device manufacturers, a wide array of healthcare providers, companies in other regulated industries and individuals on a variety of compliance-related issues, including federal healthcare laws and regulations; policies and procedures; compliance assessments related to Department of Justice (DOJ), Securities & Exchange Commission and other regulatory investigations; IRO monitoring and testing; CIA readiness assessments and reporting; and creative restructuring and reform.

Before joining BRG, Schwendinger served as a senior counsel at HHS OIG, where she focused on healthcare enforcement, compliance and investigations. She has experience in the government’s fraud investigation process, the False Claims Act, Anti-Kickback Statute, Civil Monetary Penalties Law and exclusions from federal healthcare programs. Schwendinger is a respected compliance professional, having managed numerous corporate integrity agreements while advancing the OIG’s approach to corporate monitoring.

“In a climate of increased scrutiny and accountability for compliance programs, it is an exciting time to join BRG’s Corporate Compliance and Risk Management team. I am honored to contribute to BRG’s impressive team, bringing knowledge from monitoring corporations as part of my expertise from HHS OIG,” said Schwendinger.

In a release, the company says:

Schwendinger brings deep experience to BRG for a wide range of providers to include grantees, contractors, life science companies, physician practices, hospitals, health centers, durable medical equipment, pharmacies, manufacturers and long-term care providers and suppliers. Among her accomplishments are collaborations on various matters with the National Institutes of Health, Food and Drug Administration and Centers for Disease Control and Prevention, as well as with HHS representatives at the Centers for Medicare & Medicaid Services. She also worked on OIG’s updated healthcare provider self-disclosure protocol, in addition to processes for disclosures by contractors or grantees.

Across hundreds of cases for which she obtained settlements or judgments, Schwendinger advocated for OIG’s enforcement positions related to hospice, home health, durable medical equipment, life science companies and individual providers. She served as OIG’s Grant and Contract Fraud coordinator, earning awards for excellence and innovation. She also served as a member of the grant fraud subcommittee for the DOJ’s Financial Fraud Task Force for HHS OIG. Working from the start of investigations through to resolutions, she took depositions and also handled appeals before the Departmental Appeals Board and federal courts. She championed an initiative for OIG to obtain new grant and contract Civil Monetary Penalty Law authority, which was enacted as a part of the 21st Century Cures Act.

“We are excited to have someone of Kristen’s caliber join BRG’s Corporate Compliance team. Her OIG and healthcare experience will strengthen our range of services to life sciences and other organizations, as well as their counsel.” said Ed Buthusiem, Managing Director of BRG’s Corporate Compliance and Risk Management team.

Prior to her time at the OIG, Schwendinger worked at IU Health (formerly Clarian Health) and Massachusetts General Hospital on community benefits tax reporting and research fundraising.




Jury Hits Hospital With $26M Med-Mal Verdict in Tragic Birth Case

Jurors took just eight hours to award a Brooklyn couple $26 million — double what they had sought — after overwhelmed medical residents at Maimonides Medical Center allegedly botched the birth of their twins, leaving one dead and the other deaf and mute, reports the New York Post.

Under a “high-low” agreement struck earlier by both sides, the plaintiffs agreed to receive a “high’’ of $7.5 million if they won their suit and a “low’’ of $1.5 million, even if they lost, according to reporter Julia Marsh.

In 2010, the expectant mother went to the hospital twice with cramping and spotting but was sent home by doctors-in-training, according to the lawsuit. When her twins daughters were born later, they weighed about 1.5 pounds each. A month later, one died from an infection, and the other is deaf and suffers from kidney failure.

Read the Post‘s article.




Federal Financial Resources Essential to Addressing Opioid Crisis

President Trump declared the opioid crisis a public health emergency, stopping short of calling it a national emergency. The announcement expands access to treat the epidemic, but doesn’t free new federal funding for cities and states to use.

Dallas attorney Jeffrey Simon of Simon Greenstone Panatier Bartlett, who represents Texas counties suing drug manufacturers, says more federal funding is needed.

“I commend the president for using his platform to highlight the epidemic of opioid abuse in America,” said Simon. “Opioid addiction is a disease rather than a character flaw, and the president’s effort to draw this distinction is welcome. But the financial costs of successfully treating opioid addiction are substantial, as are the costs of effective educational programs to stem the epidemic. I remain hopeful that our federal government will devote the financial resources necessary to combat this health crisis, but that remains to be seen.

“I contend that the second essential step to addressing any problem, after acknowledging its existence, is to identify the source of the problem. Our Texas county governments, which pay high costs to combat the opioid abuse epidemic in their communities, are doing this very thing. They are fighting back. Counties we represent, such as Bowie County and Upshur County, have filed lawsuits against drug manufacturers and wholesale distributors for the purpose of holding them financially accountable for their roles in promoting and selling so many of these addictive drugs.

“On behalf of their citizens, these county governments are confronting the opioid abuse epidemic in their communities. We are proud and privileged to serve Texas counties as legal counsel in this fight.”



U.S. States Allege Broad Generic Drug Price-Fixing Collusion

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A large group of U.S. states accused key players in the generic drug industry of a broad price-fixing conspiracy, reports Reuters.

Reporter Karen Freifeld writes: “The states said the drugmakers and executives divided customers for their drugs among themselves, agreeing that each company would have a certain percentage of the market. The companies sometimes agreed on price increases in advance, the states added.”

The suit names 18 companies and subsidiaries and named 15 medicines. Mylan NV, Teva Pharmaceuticals USA, Ascend Laboratories and Encure Pharmaceuticals are among the 18 companies named.

The Los Angeles Times also covered Mylan’s challenges: “A price-fixing noose tightens around Mylan, the company that profiteered from the Epipen.

Read the Reuters article.



Dismissal of $472 Million Verdict v. J&J is Disaster for Talc Plaintiffs

A ruling that throws out a plaintiff’s $417 million jury verdict against John & Johnson will affect many of the nearly 5,000 women who claim they developed ovarian cancer from J&J power containing talc, reports Reuters.

“The judge’s skepticism about causation will reverberate across the talc litigation in California because she’s overseeing all of the more than 800 suits by women who attribute their cancer to J&J powders that contained talc,” writes Alison Frankel. “Unless their lawyers can come up with better evidence than Echeverria – or unless scientific developments boost causation theories – Judge Nelson’s decision is ominous for plaintiffs and a boon for J&J and its subsidiary.”

Read the Reuters article.


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Appeals Court Tosses $72 Million Award in Talcum Powder Case

The Associated Press is reporting that a Missouri appeals court on Tuesday that vacated a $72 million award to an Alabama woman who claimed her use of Johnson & Johnson products that contained talcum contributed to her ovarian cancer has thrown the fate of awards in similar cases into doubt.

“The appeals court cited a Supreme Court ruling in June that placed limits on where injury lawsuits could be filed, saying state courts cannot hear claims against companies not based in the state where alleged injuries occurred. The case involved suits against Bristol-Myers Squibb over the blood-thinning medication Plavix,” writes the AP’s Margaret Stafford.

More than 1,000 plaintiffs have filed similar lawsuits in St. Louis against New Jersey-based J&J. “In four of five trials held so far, jurors awarded more than $300 million combined. Only two of the 64 cases attached to Fox’s case lived in Missouri,” according to Stafford.

Read the AP article.


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Lessons Learned: Vendor Sued in Class Action Suit for Security Misses

King & Fisher

Computer - cybersecurity -privacyYou’re thinking that something about the title of this post sounds familiar, right? Information technology (IT) vendors and third party service providers have been in the spotlight for security breaches for some time (see, for example, vendor-based security lapses affecting Target, CVS, and Concentra, as just a few), and it doesn’t sound surprising that an IT vendor has been sued related to a security incident. After all, whether you’re an IT vendor or an IT customer, if you draft or negotiate contracts for a living, these situations are what you try to contract for, right?

Right…but…the recent federal class action suit filed in Pennsylvania against Aetna and its vendor surfaces several new privacy and security considerations for vendors and their customers. The vendor in question was not an IT vendor or service provider. Instead, the plaintiff’s allegations relate to Aetna’s use of a mailing vendor to send notification letters to Aetna insureds about ordering HIV medications by mail. According to the complaint, the vendor used envelopes with large transparent glassine windows – windows that did not hide the first several lines of the enclosed notification letters. The plaintiff asserts that anyone looking at any of the sealed envelopes could see the addressee’s name and mailing address – and that the addressee was being notified of options for filling HIV medications. As a result, the vendor and Aetna are alleged to have violated numerous laws and legal duties related to security and privacy.

For all vendors and service providers, but especially those that don’t focus primarily on privacy and security issues, the Aetna complaint is enlightening. To these vendors and service providers, and to their customers: Do your customer-vendor contracts and contract negotiations contemplate what Aetna and its mailing vendor may not have?

  • Do your contracts for non-IT and non-healthcare services fully consider the risk of privacy and security litigation? A noteworthy facet of the Aetna case is that the mailing vendor was sued for privacy and security violations that were not exclusively due to the customer’s acts or omissions. That is, while the contents of the mailer certainly were key, the vendor’s own conduct as a mailing services provider (not an IT or healthcare provider) was instrumental in the suit being filed against the vendor (and Aetna). Vendor services that previously didn’t, or ordinarily don’t, warrant privacy or security scrutiny, may, after all, need to be looked at in a new light.
  • Do your contract’s indemnification and limitation of liability clauses contemplate the possibility of class action litigation? Class action litigation creates a path for plaintiffs to bring litigation for claims that otherwise could not and would not be brought. Class action litigation against data custodians and owners for security breaches is the norm, and the possibility and expense of class action litigation is frequently on the minds of their attorneys and contract managers who negotiate contracts with privacy and security implications. But, for vendors and service providers providing arguably non-IT services to these customers – the idea of being subject to class action litigation is often not top-of-mind.
  • Before entering into a contract, have you considered whether the specific vendor services being provided to the particular customer in question implicate laws you hadn’t considered? Vendors that operate in the information technology space – and their customers – generally are well-aware of the myriad of privacy and security laws and issues that may impact the vendors’ business, including, as a very limited illustration, the EU General Data Protection Regulation, HIPAA, New York Cybersecurity Requirements, Vendors that aren’t “IT” vendors (and their customers), on the other hand, may not be. For example, the Aetna mailing vendor may not have contemplated that, as alleged by the Aetna plaintiff, the vendor’s provision of its services to Aetna would be subject to the state’s Confidentiality of HIV-Related Information Act and Unfair Trade Practices and Consumer Protection Law.
  • Have you considered which specific aspects of vendor services may directly impact potential legal liability, and have you adequately identified and addressed them in the contract? No, this is not a novel concept, but it nonetheless bears mention. A key fact to be discovered in the Aetna litigation is whether it was Aetna, or the vendor, that made the decision to use the large-window envelopes that, in effect, allegedly disclosed the sensitive and personally identifiable information. Given the current break-neck pace at which many Legal and Contract professionals must draft and negotiate contracts, however, unequivocally stating in a contract the details and descriptions of every single aspect of the services to be provided is often impractical (if not impossible). But, some contract details are still important.

Whether or not this class action suit is an outlier or is dismissed at some point, consider data security and other privacy and security issues in contracts and how vendor or service provider conduct may give rise to a security breach or security incident.


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HIPAA Compliance Checklist Webinar

Compliancy Group will present a webinar on HIPAA compliance. The event will be Tuesday, Oct. 17, at 2 p.m. EDT.

“Through the years of helping the Healthcare industry become HIPAA compliant and pass their HIPAA audits, we continually run into the same HIPAA compliance issues and questions,” the company says on its website. “In this webinar we will run through a HIPAA compliance checklist of what needs to be done for your organization to meet the Federal Requirements. All attendees will receive a FREE personal walk through of their organization and to answer all their questions, concerns and to focus you on what your organization needs.”

Questions discussed include:

  • What do I need to do to become HIPAA compliant?
  • I’ve done my Security Risk Assessment, now what?
  • Is there a such thing as overkill when it comes to HIPAA?
  • Can you automate HIPAA compliance completely?
  • Is group or individual training sufficient?

Register for the webinar.


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