Happy New Year!

Wishing all of you a very happy 2011 with lots of new opportunities!

Posted by Tracy Green

L.A. Times Article On Illinois Physician Program For Sexual Misconduct Treatment Comes Under Attack. What Do We Do In California For Licensees With Substance Abuse And Sexual Boundary Issues?

In California, if there is a complaint made about a physician that alleges any type of "sexual misconduct," the California Medical Board handles those cases with a presumption that the physician is guilty until proven innocent. The incendiary nature of such an allegation makes it difficult for the Board to refuse to file unproven allegations and often physicians are forced into disciplinary hearings since the Board is reluctant to dismiss weak charges on its own.

The Los Angeles Times ran an article on December 29, 2010 entitled "Doctor misconduct cases monitored in secrecy" regarding a program in Illinois. The article writes about criticisms of the Illinois Professionals Health Program which operates a diversion program for physicians involving alcohol and drug abuse and now sexual misconduct allegations. The article quotes certain opinions that such programs shield physicians and that patients should know about these allegations.

California Does Not Have A Diversion Program
In California, physicians have not been eligible for diversion in lieu of discipline where there are substance abuse allegations since 2008. California does not have any program for the diversion or monitoring of physicians with sexual misconduct allegations where there is also no discipline filed against the physician.

Physicians Can Enroll In Treatment Programs Confidentially Before Disciplinary Charges Are Filed
In California, if a physician has a substance abuse or sexual boundary issue, he or she is free to participate in any treatment program on their own which will remain completely confidential. There is no duty to report the enrollment to the Medical Board. However, if the Board received a complaint that the physician has a substance abuse or sexual boundary problem, the Board investigates the matter to determine if sufficient evidence is found to proceed to disciplinary action.

Most Disciplinary Charges Arising From Substance Abuse Arise From Arrests And Convictions
In our practice, we see most discipline filings relating to substance abuse arising from misdemeanor convictions (such as driving under the influence or wet reckless) and felony arrests and convictions. Physicians (and other health care providers) are required upon renewal to disclose their misdemeanor and felony convictions.

As for arrests, physicians are not required to report a misdemeanor arrest but as for a felony arrest, they must report a felony indictment or a felony information (meaning that in a state criminal case the case has gone through preliminary hearing and the physician has been held to answer).  This means that if a doctor in California is arrested on felony charges, he or she does not need to report until held to answer after a preliminary hearing and an "Information" is filed. We have had cases where a physician was arrested on felony charges and we were able to have the charges dismissed before or at preliminary hearing which did not trigger any self-reporting requirements. Failure to report can be an additional ground for discipline.

Even though self-reporting is not required in felony cases until the Information is filed after a preliminary hearing, there is the risk that the city attorney or deputy district attorneys' office could notify the Board.  Prosecutors in criminal cases are required to notify the Medical Board (and Chiropractic, Osteopathic, Podiatric and "other allied health board") of any felony filings against a licensee upon obtaining information that the defendant is a licensee of that board.   California Business and Profession Code Sections 803.1. Thus, licensee must always be prepared for Board scrutiny where there has been an arrest. 

Reporting also occurs since court clerks are required to report misdemeanor and felony convictions of any persons licensed by the Medical Board and other Boards (Chiropractic, Dental, Osteopathic, Acupuncture, Nursing, Vocational Nursing, Optometry, Veterinary, Pharmacy, Speech-Audiology, Hearing Aid Dispensers, Respiratory Care, Behavioral Science).  California Business and Profession Code Sections 803.1 and 803.5.

Conclusion
Physicians and other licensees can expect that in California, disciplinary charges will be filed in lieu of any type of diversion program. Even where diversion programs exist (such as in nursing), the trend is to file disciplinary charges, place the licensee on probation and then require diversion. The Boards are very attuned to the political climate that they not be perceived as protecting physicians or other licensees and that the process be open to the public.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.

Any questions or comments  should be directed to Tracy Green, a very experienced California health care attorney, administrative attorney, and California Medical Board attorney.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/

California Court of Appeal Allows Dentist To Sue Writers Of Negative Yelp Review For Libel

A common question we receive from our professional clients such as doctors and health care providers is what they can do when there is a negative review online -- whether it be Google, Yelp or other websites.  

Often common sense applies, contacting the patient or customer, offering to address the issue or solve the problem, posting a response on the website outlining those attempts, and other tactics that will not alienate the readers of these sites.


Suing the Internet host is not an option under the facts of most cases since the federal communications Decency Act immunizes Yelp and other Internet sites from libel lawsuits stemming from user comments. 

A recent case in California upheld dentist Yvonne Wong's right to sue the man who posted a negative review on Yelp for libel and his wife.  The Court held in Wong v. Jing that the lower court properly dismissed claims for intentional and negligent infliction of emotional distress filed by Dr. Wong.

Dr. Wong alleged that she properly advised the couple, prior to filling their son’s cavity in 2006, that she would use a silver amalgam filling containing mercury, and that she examined the child again in 2008 and found more cavities. But after consulting another dentist, she alleged, the couple published “slanderous complaints” on Yelp.com and other websites, false claiming that she did not tell them about the mercury, misdiagnosed the son’s case, and improperly used a general anesthetic. 

Dr. Wong alleged the couple knew those claims were false. The Yelp review, a copy of which was attached to the complaint, suggesting that Wong should be avoided “like a disease;” that she worked “really fast” and caused the son to be “light headed for several hours;” that the new dentist discovered seven cavities; that Wong used laughing gas, “which was the cause of my son’s dizziness” and “harms a kid’s nerve system” and that she used “silver amalgams” containing a trace of mercury. 

As for Dr. Wong's defamation claim, the Court held that the dentist showed a prima facie case based on her sworn statements that she disclosed that the amalgam contained mercury, that she properly diagnosed the case, and that she did not use a general anesthetic or otherwise engage in unprofessional conduct, all contrary to Jing’s assertions. 

With respect to the emotional distress claims, however, the Court of Appeal upheld their dismissal. The Opinion stated that Jing’s statements, he said, fall short of the “high bar” that California sets on such claims, and could not have caused Dr. Wong to suffer “severe, lasting, or enduring” mental harm. 

Attorney Notes:  What happens now to this case? It gets sent back to the Santa Clara Superior Court and discovery and litigation proceeds. Litigation is one tool that a professional or business owner can use with respect to reviews that rise to the level of libel. However, filing a lawsuit and going through the extensive motion and appeal process which happened in this case can be costly.

We have guided clients through this process since licensed professionals need to act cautiously since disputes with patients or clients can lead to Board complaints. Anything that is written or spoken to a client or patient needs to be viewed through that lens. An analysis of the cost benefit analysis is also helpful. The Internet has turned everyone into a potential instant critic.

We refer some of our clients to "reputation management" consultants who understand the best way to drive negative reviews and encourage our clients to deal intelligently with social media and the Internet. The funds are often best spent there and on marketing rather than on litigation against reviewers. It is very frustrating especially when some of the "reviews" are false by competitors. 

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation or to discuss this post.  

The firm focuses its practice on the representation of licensed professionals (including dentists), individuals and businesses in civil, business, administrative and criminal proceedings. Our website is: http://www.greenassoc.com/

Woman Sentenced To 10 Years In Los Angeles Welfare Fraud Case With Alleged $1.3 Million Loss

In a state welfare fraud case that has been pending in Los Angeles County Superior Court for 3 years, Sakina Myles (aka Sakina Johnson), was sentenced to 10 years in state prison on December 20, 2010.  Ms. Myles was also ordered to make full restitution to the agencies in the amount of $1.3 million by Los Angeles Superior Court Judge William Pounders in Case No. BA317830.

Ms. Myles sentencing came after a no contest guilty plea to 12 counts of grand theft and 27 counts of perjury in two separate cases.  At the sentencing, Judge Pounders said he "was shocked by the monstrous greed" demonstrated by her.  The agencies who were alleged victims are: DPSS, Crystal Stairs, Drew Child Development Corporation, and the Center for Community and Family Services.

Ms. Myles was accused of leading a ring of 19 people who falsely supplied employment records and billed state and federal agencies for childcare services never rendered. The complex child care fraud scheme allegedly operated for almost 6 1/2 years, from June 2000 through October 2006. Ms. Myles allegedly claimed to operate the Johnson Family Daycare center at 438 E. 140th St. in Los Angeles, even though government authorities said records show she stopped providing childcare at that location in April 2002.   However, she allegedly continued receiving government funding even though she no longer provided childcare services. As part of the charges, she also allegedly provided phony employment records so 14 parents could qualify for childcare payments from the government’s welfare-to-work program.

Attorney Comments: The sentences continue to get longer in state court cases even where there is a plea agreement. It does not appear that Ms. Myles had a prior criminal record. However, the length of the sentence appears to indicate that there was no or little payment of restitution prior to the sentencing. In fraud cases, restitution is important to the prosecutors and the victims. Thus, successful mitigation of these cases focuses significantly on restitution.

Restitution is made by the judge and does not consider ability to pay. Where restitution is not possible due to financial reasons, it is important to show that all efforts have been made to pay something even if the amount is overwhelmingly large. Many clients find it difficult to pay the $250 a month even if the loss is in the million dollar range but they do not understand that it is important to pay what you can. I encourage clients to take second jobs devoted solely to restitution, selling assets, holding yard sales and showing the efforts to pay restitution. This is part of taking responsibility where there has been a plea agreement. The more creative I can be in showing that my client is working harder than anyone else -- the easier it is to obtain a fairer sentence.

Years ago, the state Department of Corrections had a restitution center halfway house program, but that program has been eliminated. To the extent we can create our own program where there will be a greater likelihood of restitution payment, we can present that as an alternative to state prison. It requires, however, a significant commitment by the client and depends on the assets available and whether there is a realistic ability to earn restitution instead of state prison. Every case is different and depends on the amount of the loss, the sentencing judge, the prosecutors on the case and the individual's past history.

Posted by Tracy Green, Esq.  Any questions regarding your own situation should be directed to Tracy Green, a very experienced welfare fraud attorney and white collar crime attorney. You can email her at tgreen@greenassoc.com or call her at 213-233-2261.  

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing individuals and small businesses in fraud and overbilling allegations in California and throughout the country. Their website is: http://www.greenassoc.com/

Medical and Physician Marketing: Los Angeles Times Article On "Scrutiny Of Lap Band Enterprise Is Overdue"

On March 4, 2010, I posted an article regarding the Los Angeles Times' articles on Top Surgeons' marketing of lap bands entitled "L.A. Times Article On Lap Band Surgery Centers: What Other Legal And Consumer Issues Are Raised Here?"

The Los Angeles Times recently wrote another article on December 19, 2010 stating that "Scrutiny of Lap Band Enterprise Is Overdue." 

According to the L.A. Times, the 1-800-GET-THIN billboards which pepper the Los Angeles and Orange County freeways have caught the attention of the Los Angeles County Department of Public Health and it has asked the U.S. Food and Drug Administration to investigate the ad campaign.  Here is a link of the letter that was sent to the FDA. 


The referral to the FDA was probably made since the Medical Board does not have jurisdiction over advertising by non-physicians and there were some issues over who has jurisdiction over the surgery centers operated by non-physicians. The success of this type of marketing to patients comes with its pitfalls and level of scrutiny. 

For health care providers, this article is a reminder that they need to ensure that their advertising and referral arrangements with surgery centers and companies that advertise (on the Internet and elsewhere) comply with California and federal laws prohibiting false advertising and the giving of any consideration (money or other things of value) for the referral of a patient.

Should you have any questions regarding your own situation or this post, you can email physician attorney Tracy Green at tgreen@greenassoc.com. Green and Associates is located in downtown Los Angeles, California and focuses their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a long-standing specialty in representing health care providers. Ms. Green is presently a member of the Board of Directors of the California Naturopathic Doctors Association. The firm website is: http://www.greenassoc.com/

Elderly New York Doctor Arrested On Charges Of Distributing Painkillers

 

The DEA is taking an active stance across the country on physicians who prescribe painkillers to patients without medical necessity.  On November 16, 2010, Dr. Felix Lanting, age 83, was arrested on a charge of conspiracy to distribute oxycodone in Grant City, New York. At the time he was arrested, the federal agents also conducted a search warrant.  Charges were filed in the Eastern District of New York.

Dr. Lanting garnered some unwanted attention when he was interviewed in August 2010 by the press  for a story on a state-run database of patients who have had prescriptions filled from multiple sources.
Of his approach with dealing with patients seeking prescriptions, he said: "We take their word and we depend on the pharmacists' computers."

Obviously, that quote is not the standard for physicians in today's world.  Although Dr. Lanting may have been quoted out of context, this was not a great quote for public viewing. We can expect to see an increase in filings against physicians for subscribing painkillers. 


Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.
Any questions or comments  should be directed to Tracy Green, a very experienced California health care fraud attorney, prescription fraud attorney, California DEA lawyer, and California Medical Board attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/