Tuesday, May 31, 2011


In the past large corporations were targeted in health care fraud cases. Now, the executives at these corporations are being sought out with their personal reputation and futures on the line.
The new tactic is raising the anxiety level and risks for corporate honchos at drug companies, medical device manufacturers, nursing home chains and other major health care enterprises that deal with Medicare and Medicaid.
Previously, if a company got caught, its lawyers in many cases would be able to negotiate a financial settlement. The company would write the government a check for a number followed by lots of zeroes and promise not to break the rules again. Often the cost would just get passed on to customers.
Now, on top of fines paid by a company, senior executives can face criminal charges even if they weren't involved in the scheme but could have stopped it had they known. Furthermore, they can also be banned from doing business with government health programs, a career ending consequence.
Many in industry see the more aggressive strategy as government overkill, meting out radical punishment to individuals whose guilt prosecutors would be hard pressed to prove to a jury.
The feds say they got frustrated with repeat violations and decided to start using enforcement tools that were already on the books but had been allowed to languish. By some estimates, health care fraud costs taxpayers $60 billion a year, galling when Medicare faces insolvency.
When you look at the history of health care enforcement, there has been a number of Fortune 500 companies that have been caught not once, not twice, but sometimes three times violating the trust of the American people, submitting false claims, paying kickbacks to doctors, marketing drugs which have not been tested for safety and efficacy.
The inspector general of the Health and Human Services Department stated that he feels that those in high ranking positions at these companies are not getting that what is happing is wrong. If writing a check for $200 million isn't enough to have a company change its ways, then maybe the individuals who are responsible for this be held accountable. The behavior of a company starts at the top.
Lawyers who represent drug companies say the change has definitely caused a stir, but the end result is far from certain. People are alarmed, and want to know what facts and circumstances would cause the Justice Department to indict someone who hadn't even known about the misconduct. The drug companies claim they are doing all they can to achieve compliance.
Others say high-powered corporate targets won't go meekly. If the government does continue to press its campaign against individuals, we may see the limits of the government's theories tested. There is a very important open question as to whether individuals can be held criminally culpable or lose their jobs simply by virtue of their status.
Although the Obama administration has increased scrutiny of corporate America generally, this shift in health care enforcement seems to have come up from the ranks, government and corporate attorneys say.
Investigators and lawyers at the HHS inspector general's office, the Justice Department and the Food and Drug Administration started moving more or less independently toward holding executives accountable. Morris outlined the inspector general's position in congressional testimony this spring, saying his office will use its power judiciously.
A test case is playing out with an 83-year-old drug company chief executive, Howard Solomon of New York City-based Forest Laboratories. Forest makes antidepressants, blood pressure drugs and other medications. Last month, the inspector general's office notified Forest that Solomon could potentially be banned from doing business with federal programs.
The power to ban or exclude an individual rests with the inspector general. It's routinely applied to low-level violators, but rarely to people of Solomon's rank. In the industry, they call it the "death penalty."
Last year, a Forest subsidiary pleaded guilty to criminal charges as part of a settlement with the Justice Department in which the company also agreed to pay $313 million to resolve long-running investigations. Prosecutors charged that Forest deliberately ignored an FDA warning to stop distributing an unapproved thyroid drug, promoted the use of an antidepressant in treating children although it was only approved for adults and misled FDA inspectors making a quality check at a manufacturing plant.
The company said it had considered the case closed. But then came the inspector general's letter.
A statement release said no one has ever alleged that Mr. Solomon has done anything wrong and excluding him would be completely unjustified. In prior cases where a senior executive has been excluded, that individual has been accused of wrongdoing and ultimately has either been convicted of or pleaded guilty to a crime.
Forest is fighting the move to ban Solomon. The inspector general's office refused to comment on the case, and no final decision has been made. In congressional testimony, it was said that when there is evidence an executive knew or should have known about misconduct, the inspector general "will operate with a presumption in favor of exclusion of that executive."
Separate from the inspector general's power to ban, the FDA has resurrected something called the "Park Doctrine," which makes it easier for prosecutors to bring criminal charges against an executive.
The doctrine, stemming from a 1970s Supreme Court case, allows the government to charge corporate officers in the chain of command with a criminal misdemeanor. They could face up to a year in prison and fines if they had the authority and responsibility to prevent, detect or resolve misconduct affecting the public welfare but failed to do so.
Although many details concerning the laws are still being discussed, the progress may already be making an impact on the industry. CEO’s and executives may think twice before making a questionable decision. Some companies already in fear of repercussions have changed their ways and began compliance.


A prosecutor charged Friday that an Oregon City couple watched a growth over their infant daughter's left eye balloon into a golf ball-sized bulge but didn't seek medical treatment because that conflicted with their religious practices. A Michigan Birth Injury Lawyer fears that these cases are on the rise.
In her opening statement, prosecutor Christine Landers said the child's father, Timothy Wyland, told a detective that "sometimes God heals, and sometimes God lets children die."
Timothy and Rebecca Wyland are members of the Followers of Christ, a congregation that relies on faith healing. They were charged with first-degree criminal mistreatment after the growth over their daughter Alayna's eye went untreated until a court ordered her taken to a doctor.
Defense lawyer John Neidig told the Circuit Court jury that the couple are loving parents who became victims of overzealous child welfare workers at the Oregon Department of Human Services. He says the couple believed the growth would shrink and then vanish as their daughter grew.
The little girl, now 1 years old, has improved under court-ordered medical treatment for a hemangioma, an abnormal buildup of blood vessels. She remains in state custody but lives with her parents.
Doctors who testified at juvenile court proceedings last year said she would have lost vision in the eye if the condition was left untreated.
The eye is still not properly set in its socket, Landers said.
The state criminal mistreatment statute says it is a crime when a parent "knowingly withholds necessary and adequate … medical attention" from a child, the Oregonian reports.
Clackamas County sheriff's Deputy Emile Burley testified Friday that he made a child welfare check at the family home on June 29, 2010, and instantly noticed a "large bulging area" on Alayna's left eye "the size of a golf ball, maybe a little larger."
Defense lawyer Neidig said the parents had been assured by family, friends and even strangers that the mass would eventually vanish. A relative had a similar growth that went away, Neidig said.
In the past two years, Clackamas County has prosecuted two other couples from the same church whose children died from untreated ailments.
Jeff and Marci Beagley were convicted of criminally negligent homicide last year and sentenced to 16 months in prison after their 16-year-old son, Neil, died of complications from an untreated urinary tract blockage.
In 2009, the Beagleys' daughter, Raylene Worthington, and her husband, Carl Brent Worthington, were acquitted of second-degree manslaughter in the death of their young daughter, Ava, who died in 2008 of bronchial pneumonia and a blood infection. Brent Worthington was convicted of the lesser charge of criminal mistreatment and sentenced to 60 days in jail.

Thursday, May 19, 2011


According to the report from the Albany-based Rockefeller College of Public Affairs and Policy, an effort to have more women judgeships is showing slight progress. Currently federal and state judgeships held by women are at 27 percent. Vermont has the most at 40 percent and Idaho is last at 11.3 percent.
New York and other parts of the country have virtually none, the report shows which and concern even a Raleigh Lawyer. New York ranks 12th among states in gender parity, having 39 federal and 374 state judges who are women, almost 31 percent of its total, up 1 percent and two places from the year before.
It is encouraging that to see progress, but at the same time progress has been so slow and not consistent with the fact that there are enough women who are a qualified top lawyer to serve on the bench. State Supreme Court Justice Laura Jacobson got elected first to civil court in Brooklyn, one of the New York City’s five borough, by getting a petition signature and without support of the political clubs. After 12 years on that court, she got elected with needed party support to the higher court.
The source for the study’s data was the 2011 edition of the director “The American Bench: Judges of the Nation.” In a legal profession once dominated by men, nearly half the U.S. law school graduates now are women.
Other academic research shows that having in office people who are representative of all segments of the population increases trust in the judiciary and the government, according to the report.
American Bar Association research from 41 states showed women made up 31 percent of the U.S. legal profession last year but only about 15 percent of top partners at law firms.
A Raleigh attorney claims some clients are leery that a judge’s gender, especially female, may hurt them in court. One female judge admitted to having clients that she knows were concerned that as a female she may not have the same standing in the court system where all of the judges are male.