“West Palm Beach attorneys William D. Zoeller and Michael V. Baxter of Schuler Halvorson Weisser Zoeller Overbeck obtained a $4 million jury verdict for the family of a 72-year-old man who died after his doctor tried to insert a catheter 14 times—for a procedure the plaintiffs alleged could have waited,” reports Raychel Lean in News.law’s Civil Plaintiff.

“But not all the facts were on their side. Gerald Sanford had a history of mitral valve regurgitation, a heart problem that can cause a back flow of blood. He also had an 80% to 90% blockage in one of his arteries, which the defense said warranted surgery to unclog.”

“Zoeller and Baxter argued that wasn’t as bad as it sounds because Sanford wasn’t experiencing symptoms, such as chest pain or shortness of breath. They claimed the risks of opening that artery outweighed the benefits.”

Read the article.

“A 2018 Sixth Circuit panel upheld a jury verdict convicting Dr. Richard Paulus of submitting fraudulent medical claims. That same panel, with 2020 hindsight(!), reversed that conviction. It held that the trial court’s order unconstitutionally blocked exculpatory evidence,” reports Thomas Zeno in Squire Patton Boggs case updates.

“The ‘twisted’ history of the verdict began when a jury deadlocked twice and needed an Allen charge in order to convict Dr. Paulus of billing angiograms that were unnecessary.  The trial court rejected the jury’s verdict and set aside the conviction: a doctor’s decision about the degree of blockage of an artery was a matter of subjective medical opinion that ‘could be neither be false nor fraudulent.’  The government disagreed and appealed.  (Double jeopardy does not prevent appeal of a judgment of acquittal after verdict.)”

“In the first appeal, the panel (McKeague, Batchelder, Griffin) recognized the difficulty of distinguishing a fraudulent medical opinion from mere expert disagreement.  Relying on the U.S. v. Persaud, however, the panel reaffirmed that fraud occurs when a doctor deliberately inflates artery blockage in order to bill for unnecessary procedures.  The panel emphasized that “it is up to the jury – not the court – to decide whether the government’s proof is worthy of belief.”  Deferring to the jury, the panel reversed, reinstated the conviction, and remanded the case for sentencing.”

Read the article.

“Directors of the Tulare Local Health Care District (TLHCD) voted  … to file a formal complaint against their former attorney with the California State Bar Association,” reports Dave Adalian in Valley Voice.

“’This is a mechanism to remove a bad apple from the profession,’ said TLHCD director Xavier Avila before the board voted unanimously to approve making the complaint. ‘If you’re driving down the road and you see an obstruction, a branch laying in the way, you remove it.’”

“Avila was describing the TLHCD’s former general counsel Bruce Greene.”

Read the article.

“In April 2019, a federal jury found seven defendants associated with the Forest Park Medical Center (FPMC) in Dallas, Texas guilty on charges of conspiring to pay or receive health care bribes. The defendants in United States v. Beauchamp were convicted of collecting over $200 million dollars in a kickback scheme under which doctors were paid to refer patients to FPMC,” reports Alan J. Bozer and Joshua Glasgow in Phillips Lytle’s articles.

“Prosecution of this case was in many ways unsurprising. In 2018 alone, the federal government prosecuted more than 30 health care fraud cases yielding over $2.5 billion dollars in settlements and fines. The Beauchamp case is notable, however, because of the particular charges filed by the Department of Justice (DOJ).”

“In addition to alleging violations of the Anti-Kickback Statute … the government charged several defendants with violating the Travel Act of 1961 … an anti-racketeering statute that is rarely used in health care fraud cases. This novel use of the Travel Act may foreshadow a new government enforcement strategy that could broaden the scope of liability for uninformed physicians and health care administrators across the United States.”

Read the article.

“A federal district court in Massachusetts recently ordered Minneapolis based Coloplast to pay over $760,000 to Plaintiff, Amy Lestage, for retaliating against her after she and others filed a whistleblower complaint against the company,” reports Jolena Jeffrey in Katz, Marshall and Banks’ Whistleblower Law Blog.

“In December 2011, pharmaceutical whistleblower, Lestage, along with two former Coloplast employees filed a False Claims Act (FCA) qui tam action against the company, Byram Healthcare, and other large distributors of medical devices and services related to medical conditions and surgeries such as incontinence and ostomy.  The qui tam action alleged that Coloplast and some of its distributors engaged in an illegal kickback scheme to inflate their Medicare and Medicaid reimbursements and thereby defraud the federal government.  The qui tam action was unsealed on November 20, 2014, and the names of the relators, including Lestage, became public knowledge.”

Read the article.

“The three giant drug distributors are negotiating a deal with the states to end thousands of opioid lawsuits nationwide, in which they would pay $19.2 billion over 18 years and immediately submit to stringent monitoring requirements to assure that suspicious orders for prescription opioids would be halted,” reports Jan Hoffman in The New York Times’ Health.

“So far, 31 states plus the District of Columbia have tentatively agreed to the deal, while 19 states, including Florida, Connecticut and West Virginia, have not.”

Read the article.

Bradley Arant Boult Cummings LLP is pleased to announce that it has secured a favorable settlement agreement for its hospice provider client AseraCare with the U.S. Department of Justice (DOJ) over a Qui Tam lawsuit that began in 2008.

Under terms of the agreement, AseraCare will pay $1 million to the DOJ, which had sought more than $200 million worth of claims under the False Claims Act.

“Our client AseraCare is very pleased with this settlement and the outcome of this case that provides benefit and clarity to the hospice industry over Medicare billing reimbursement, as well as some level of comfort and certainty to physicians who treat terminally ill patients,” said Bradley partner Jack W. Selden, who served as lead counsel in this case. “The existing law and the evidence that we presented clearly supported AseraCare’s position and helped us secure this settlement beneficial to our client.”

Bradley partner Kimberly B. Martin, chair of the firm’s Litigation Practice Group who also served as counsel to AseraCare in this matter, added, “This positive outcome also helps AseraCare continue its mission to provide vital hospice care and services to patients and their families with integrity and the utmost commitment to upholding ethics in the healthcare industry.”

The Eleventh Circuit Court of Appeals, in an opinion issued Sept. 9, 2019, agreed with AseraCare and the District Court that a mere difference of reasonable physician’s opinions on a terminal patient’s prognosis will not constitute falsity under the False Claims Act. The Court of Appeals also clarified that any other evidence presented by the government in an effort to impose False Claims Act liability must be directly linked to the claim the government contends is false. Bradley partner Matt Lembke, who was a key member of the trial team and argued the case in the Eleventh Circuit Court of Appeals, noted that “The result provides additional clarity for hospice providers faced with claims under the False Claims Act.”

Other key members of the Bradley team included Nick Danella, Tiffany deGruy, Fritz Spainhour, and Erin Sullivan.

AseraCare is a leading provider of hospice services caring for 2,200 patients and families per day. The company operates 44 locations in 14 states. For more information about AseraCare, visit www.aseracare.com.

About Bradley
Bradley combines skilled legal counsel with exceptional client service and unwavering integrity to assist a diverse range of corporate and individual clients in achieving their business goals. With offices in Alabama, Florida, Mississippi, North Carolina, Tennessee, Texas, and the District of Columbia, the firm’s nearly 550 lawyers represent regional, national and international clients in various industries, including banking and financial services, construction, energy, healthcare, life sciences, manufacturing, real estate, and technology, among many others.

Perkins Coie is pleased to announce that Zubin Khambatta has joined the firm’s Healthcare industry group as a partner in the Austin office. Zubin is the latest addition to the newly opened Austin office, highlighting Perkins Coie’s continued growth and expansion in Texas.

Zubin joins a team of three other new partners who have already joined the Austin office since its opening in the past month. He will also help strengthen the health care-related focus of the firm’s Technology Transactions & Privacy practice in the Dallas office and partner with the Dallas-based healthcare innovations and privacy practice.

Zubin represents clients in reimbursement related matters that involve counseling and advisory services, litigation, representation before state regulatory bodies, OIG or other government investigations, and structuring complex contractual arrangements with governmental and commercial payors. This focus includes guiding providers in regulatory compliance and payment matters involving government sponsored supplemental payment programs that enable the provision of services to Medicaid and uninsured populations. He counsels healthcare organizations in transactional and compliance matters involving Medicaid and Medicare regulations, the Medicaid Disproportionate Share Hospital program, section 1115 Waiver programs, Medicaid managed care, healthcare fraud and abuse laws, the Emergency Medical Treatment and Active Labor Act, and state laws governing public healthcare providers and nonprofit healthcare organizations. He also represents healthcare clients in mergers, acquisitions and other transactional matters, including physician group, hospital and behavioral health provider acquisitions, and various forms of co-ownership or co-management of healthcare organizations. Zubin represents multi-state hospital organizations, children’s hospitals, public hospitals, academic medical centers, hospital districts, and physician groups in these areas.

Zubin received his J.D. from the University of Chicago Law School, his M.S. from the University of Edinburgh, with Distinction, and his B.A. from the University of Pennsylvania magna cum laude.

“Disruptionware is defined by the Institute for Critical Infrastructure Technology (ICIT) as a new and “emerging category of malware designed to suspend operations within a victim organization through the compromise of the availability, integrity and confidentiality of the systems, networks and data belonging to the target.” New forms of disruptionware can be a more crippling form of cyber-attack than other more “garden-variety” malware and ransomware attacks.” warns an article in JDSupra.

“Generalized forms of ransomware attacks – designed to block access to the victim’s computer systems until money is paid – are continuing to represent a more prevalent threat to government agencies, healthcare providers and educational institutions … another publication has noted the rise of ransomware attacks since the beginning of 2019 finding that there have been at least 621 reported successful ransomware attacks against U.S.-based corporations. Of these attacks, at least 491 were targeted against healthcare providers, while another 68 of the attacks were directed at county and municipal institutions, and 62 of the attacks were focused on school districts.”

“The FBI’s PSA serves as a warning to businesses that they should have a plan in place to respond efficiently and appropriately in the event of high impact ransomware and disruptionware attacks.”

Read the article.

When it comes to physician employment agreements, non-compete provisions can be controversial and tricky, warns A. Kevin Troutman in Fisher Phillips’ Non-Compete and Trade Secrets Blog.

Such provisions can “restrict a doctor from practicing in a specified geographic area for a stipulated period of time after termination of their employment,” he writes. “The key question is when do such provisions become unreasonable? The analysis becomes even more complicated when factoring in the unique bond between patients and their doctors. After all, most patients’ sense of loyalty lies with their physician, not with a particular hospital, clinic or medical group.”

Read the article.

In a post on the American Medical Association website, AMA senior attorney Wes Cleveland discusses physicians’ letters of intent and when an attorney should be retained during the contracting process.

He explains that the letter of intent represents an effort for the physician and employer to be sure they’re on the same page on such issues as compensation, length of employment, benefits, responsibilities and more.

He also discusses binding versus non-binding agreements.

Read the article.

Littler, an international employment and labor law practice representing management, has released the results of its second annual European Employer Survey Report, completed by 572 in-house counsel and human resources professionals.

The firm reports the survey found that improving workplace equality is top-of-mind for European employers, and most respondents are moving to address equal pay and workplace harassment. Employers are also taking a variety of steps to support the mental health of their employees. And despite the uncertainty surrounding the United Kingdom’s looming exit from the European Union, a surprising portion of respondents feel prepared for Brexit’s employment-related impacts.

The survey findings were unveiled at Littler’s European Employer Conference in London.

The firm provided a summary of the survey’s findings:

Workplace Equality

European employers are focusing a great deal of attention on equal pay, reporting increased engagement on a variety of potential actions in comparison to the 2018 survey. Providing female and diverse employees with more training and opportunities for advancement showed the greatest increase (up from 21 percent in 2018 to 33 percent in 2019), followed by improving transparency around wages and pay policies (up from 21 to 30 percent) and modifying compensation policies (up from 25 to 32 percent).

The proliferation of laws mandating gender pay gap audits in European countries appears to be one driver of this activity. Most respondents (80 percent) identify conducting and reporting on their gender pay gaps as a concern, but the European employers surveyed are also taking actions beyond those required by law.

“In addition to legal liability, employers are worried that pay inequities in their workplaces could negatively impact their reputations, employee satisfaction and their ability to attract talent,” said Thomas Griebe, Littler partner in Germany. “Particularly as labor markets tighten, recruiting and retaining qualified employees is a challenge, and it becomes more difficult if current and potential employees are concerned about being comparatively underpaid.”

European employers are also moving slightly more aggressively to address workplace sexual harassment, by updating HR policies (up from 26 percent in 2018 to 32 percent in 2019), more proactively addressing complaints and misconduct (up from 23 to 31 percent) and strengthening investigative procedures (up from 23 to 30 percent).

Furthermore, a fair percentage of respondents support European governments taking steps to combat sex-based harassment and discrimination in the workplace; nearly half (42 percent) support requiring companies to designate a point of contact for workers to bring allegations and more than a third (35 percent) support mandatory reporting on the state of gender equality.

“Given that strict regulatory action has not been widespread in the countries surveyed, employers appear to be taking action to address sexual harassment in order to ensure a positive workplace for employees and help protect themselves from liability,” said Merete Furesund, Littler partner in Norway. “Concern and attention to this issue have led European employers to take a range of concrete actions and boost their efforts to combat it.”

A comparison with the results of Littler’s latest annual survey of employers in the United States, released in May 2019, shows higher European engagement on equal pay, whereas more US employers report taking action to address workplace sexual harassment. Only 15 percent of European employers say they have not taken any action to address equal pay in the workplace, compared to 37 percent of US employers. On the other hand, more US employers report taking steps in response to the #MeToo movement, including providing additional training (22 percent in Europe compared to 63 percent in the US) and updating HR policies (32 percent in Europe compared to 51 percent in the US).

These differences may reflect the level of media and legislative attention paid to these issues in Europe vs. the US. Legal measures requiring gender pay gap reporting have been more prevalent in Europe, while the #MeToo movement in the US has given rise to a bevy of state laws requiring sexual harassment training.

Workplace Mental Health

Against the backdrop of an aging workforce, rapidly evolving technology and market pressures requiring employees to do more with less, European employers are increasingly focused on mental illness in the workplace. Nearly nine in 10 respondents (87 percent) say their organisations are taking various actions to address and support employees’ mental health. Forty-one percent are providing adequate time off and sick leave, 38 percent are limiting work hours and off-the-clock work and 35 percent are encouraging a culture that supports open communication between employees and management.

“Workplace mental health is having its #MeToo movement. It’s always been there, but now it’s being acknowledged as a serious concern,” said Stephan Swinkels, Coordinating Partner International at Littler. “Given the array of forces driving the issue, we can expect continued momentum as workers feel more comfortable speaking out and companies become more involved in order to retain talent, reduce workplace stress and promote productivity.”

Companies are also putting greater emphasis on supporting workers returning from extended mental-health leave. More than a quarter (28 percent) say their organisations have been successful in reintegrating employees and only six percent say they have been unsuccessful. However, the fact that a plurality of respondents (38 percent) don’t know if their organisations are effective in this regard signals continued room for improvement.

Brexit’s Impact on Employment

Since the UK voted to leave the EU three years ago, the potential fallout from Brexit has created headaches for many companies. Despite the fog of uncertainty surrounding respondents in late summer, when they took the survey, 48 percent say they are somewhat or very prepared for the employment-related impacts of Brexit. Only 12 percent say they are unprepared or somewhat prepared, and the remaining 40 percent are neutral. UK respondents expressed the highest degree of preparedness; 67 percent say they feel very or somewhat prepared.

This confidence could be driven by the proactive steps employers have taken, such as moving their headquarters out of the UK, opening new offices on the mainland and identifying employees who would be affected in order to plan for work permits or replacements. It may also be bolstered by respondents’ optimism that the UK would enact a skills-based immigration system after Brexit eventually takes effect. Nearly two-thirds of UK-based respondents (59 percent) feel that such a system will enable the nation to remain a global hub for skilled workers, while only 8 percent express scepticism.

“For UK employers, having access to the skilled workers they need to run their businesses is absolutely critical,” said Paul Quain, Littler Partner in the UK. “A general climate of uncertainty that makes preparation difficult as companies don’t know what they are preparing for – combined with some anti-immigrant sentiment, including against non-British EU nationals, that has been seen by the British government as a key driver behind Brexit – leaves a great deal of ambiguity around a post-Brexit skills-based immigration system.”

The survey report covers a range of other legal and HR issues impacting European companies, including unconscious bias in the workplace, trends in artificial intelligence and robotics use, the significant rise in spending related to the EU’s General Data Protection Regulation and the impact of the European Court of Justice’s decision on employee working-time monitoring.

The Houston Chronicle reports that an appeals court justice serving Southeast Texas continues to sit on the bench as she suffers from Alzheimer’s disease, all while facing familial discord over the control of her $8 million estate, court records show.

The Chronicle‘s Samantha Ketterer explains:

“Her sons launched an effort this month to become her legal guardians, alleging that Justice Laura Carter Higley, 72, is continuing with her daily routine in a manner contrary to the path of her failing cognitive health. That includes driving herself to work downtown and serving in her capacity on the First Court of Appeals based in Houston, said sons Garrett C. Higley and Robert Carter Higley.”

Documents filed in probate court indicate that she received an official diagnosis of Alzheimer’s disease in October.

Read the Houston Chronicle article.

The nation’s three top drug distributors and a major drugmaker reached a $260 million settlement with two Ohio counties Monday over the deadly havoc wreaked by opioids, striking a deal just hours before they were set to face a jury at the start of the first federal trial over the crisis, reports CBS News.

“The settlement means the closely watched trial will not move forward now,” according to CBS News. “The trial involved only two counties — Cleveland’s Cuyahoga County and Akron’s Summit County — but was seen as an important test case that could gauge the strength of the opposing sides’ arguments and prod them toward a nationwide settlement that ultimately would involve billions of dollars.”

Read the CBS News article.

The Associated Press reports that negotiations aimed at reaching a major settlement in the nation’s opioid litigation reached an impasse Friday.

The AP’s Geoff Mulvihill writes that one of the negotiators, North Carolina Attorney General Josh Stein, said late Friday that local governments did not accept a deal worth $48 billion in cash, treatment drugs and services.

“Paul Farrell, a lead lawyer for the local governments, told The Associated Press that one hang-up was the states’ desire to be in charge of dividing the money. They said that the deal would provide free Suboxone, a drug used to treat opioid addiction, across the country,” according to Mulvihill.

Read the AP article.

Although Purdue Pharma LP is based in Connecticut and incorporated in Delaware, the company at the center of the opioid crisis filed for bankruptcy in New York, in a court where its case would be assigned to the only judge who works there, reports The Washington Post.

Bankruptcy Judge Robert Drain, on the bench since 2002, has long experience with complicated bankruptcy cases. On Friday he heard arguments over whether to take the unusual step of halting action in about 25 lawsuits brought by various states against Purdue and members of the Sackler family, which owns the company.

The Post article quoted Lynn M. LoPucki, a professor at the UCLA School of Law: “Of course Purdue strategically picked White Plains over all other courts. That’s like asking whether a chess master has a strategy or just makes moves randomly.”

According to The New York Times, the judge on Friday cited mounting costs of litigation that are siphoning funds that could otherwise go to abate the opioid crisis and ordered a pause in legal action by states against Purdue Pharma and its owners, the Sacklers.

Read the Post article.

Elizabeth Holmes

Photo by Max Morse for TechCrunch

The Mercury News reports that lawyers representing disgraced Theranos founder and accused fraudster Elizabeth Holmes said in a civil case claim she hasn’t paid them for more than a year and probably never will, according to court records, and they don’t want to be her lawyers anymore.

“Ms. Holmes has not paid Cooley [LLP] for any of its work as her counsel of record in this action for more than a year,” lawyers Stephen Neal, John Dwyer and Jeffrey Lombard said in the filing. They are asking the court for approval to stop representing Holmes.

Holmes faces maximum penalties of 20 years in prison and a $2.75 million fine, plus possible restitution, according to Ethan Baron of the News.

Read the Mercury News article.

A California woman suffering from mesothelioma has prevailed in the latest talc trial against Johnson & Johnson, following six days of jury deliberation that ended Friday when the jury awarded her $40 million in damages.

Plaintiffs’ lawyers said Nancy Cabibi, 71, of Hasuer, Idaho, and her husband Phil sued Johnson & Johnson, makers of Johnson’s Baby Powder, following her pleural mesothelioma diagnosis in 2017. Since then, Cabibi has undergone a variety of medical procedures including radical surgical intervention, chemotherapy, radiation and immunotherapy.

Testing of her body tissue showed the presence of tremolite and anthophyllite asbestos, known contaminants of Johnson’s Baby Powder and Shower to Shower, both of which were manufactured by Johnson & Johnson and both of which Cabibi used.

The jury in the case found Johnson’s Baby Powder defective because it contained asbestos. It also found the powder caused Cabibi’s mesothelioma, which is an invariably fatal form of cancer, her lawyers said.

Johnson & Johnson argued Cabibi was exposed to asbestos through living in an area of Los Angeles home to industry, though she never worked in or even entered any facilities where she would have been exposed to asbestos.

“Nancy Cabibi is fighting to survive every single day because of asbestos in Johnson’s Baby Powder. While we are very pleased with this verdict, we know that we must continue to fight on behalf of the Cabibis and so many others who have been harmed,” said attorney David Greenstone of Simon Greenstone Panatier in Dallas, who along with firm attorneys Stuart Purdy and Marissa Langhoff represented the plaintiffs.

This is just the latest win for the law firm against Johnson & Johnson. Earlier this month, name partner Chris Panatier was one of several lawyers representing four people with mesothelioma who sued J&J in its home state of New Jersey. That jury found the four were exposed to asbestos from using the company’s baby powder and awarded $37.3 million.

And in May 2018, attorneys David Greenstone and Chris Panatier represented Joanne Anderson of Williams, Oregon who was on the receiving end of a $25.75 million verdict when another California jury found manufacturing and design defects in Johnson’s Baby Powder due to the presence of asbestos.

Simon Greenstone Panatier, P.C., is a nationally recognized trial law firm with a reputation for creative and aggressive representation of clients in a wide variety of catastrophic personal injury matters nationwide. For more information, visit http://www.sgptrial.com/.

Drexel University’s online LLM programs from the Thomas R. Kline School of Law can provide a legal practitioner with the expertise needed to become a specialist in either cybersecurity and data privacy or health care and pharmaceutical compliance.

Kline School of Law representatives will answer questions about the program at an online open house on Tuesday, Oct. 22, 2019, at 6 p.m. ET.

The university offers the program online on either a full- or part-time basis.

With a focus on topics like EU data privacy and internet law, this specialized LLM program will help fill a knowledge gap that’s needed in the cyber law and data privacy field, the university says on its website. Participants can tailor elective courses to specific fields such as health care, finance or higher education.

The health care and pharmaceutical industry is increasingly complicated and ever-changing, and Drexel’s LLM program provides insider knowledge needed to successfully navigate the system. Participants can focus on either health care compliance or pharmaceutical compliance or take classes in both areas, according to the university.

Learn more about the LLM program.

Compliancy Group will present a webinar on HIPAA compliance and cybersecurity on Wednesday, Oct. 23, 2019, at 2 p.m. Eastern time.

Enacted in 1996, the Health Insurance Portability and Accountability Act (HIPAA), established industry standards that every healthcare organization is required to adhere to. Throughout the years, HIPAA regulation has been modified, as such it is essential to keep up-to-date with the latest regulatory changes. Since its inception, HIPAA law has become part of an organization’s culture, affecting how to do business and how a practice is run. Learn the ins and outs of HIPAA compliance and cybersecurity.

Webinar presenters will discuss how HIPAA compliance and cybersecurity go hand-in-hand and will simplify HIPAA compliance. They will walk viewers through the full extent of the regulation, including the revisions and amendments that have been added over the years.

Register for the webinar.