Tracy Green Quoted On Physician Accused Of Second Degree Murder And Excessive Prescribing Due To Accidental Overdoses by Patients

Tracy Green was quoted in the Los Angeles Times regarding her newest former physician client who pleaded not guilty to all counts (including second degree murder and excessive prescribing) on Friday, September 27 before Judge Schnegg. The article entitled "RowlandHeights Physician Charged With Murder Pleads Not Guilty" states as follows:

"Tracy Green, a Los Angeles attorney who recently began representing Tseng, said she is "extremely confident" her client will be acquitted."

"This isn't a murder case," Green said. "In America, we believe in personal responsibility.... When [Tseng] prescribed these medications to the three patients at issue, they … had their own agenda, which was to seek drugs."

For more information, feel free to contact Tracy Green at tgreen@greenassoc.com or at her office at 213-233-2260. The firm's website also has additional information about her and her firm. 

Los Angeles Times Reports On Lawyers Who Defend Doctors - Attorney Tracy Green Quoted

(Liz O. Baylen / Los Angeles Times)

Attorney Tracy Green was interviewed by the Los Angeles Times for an article regarding a case against a former physician Lisa Tseng presently pending in Los Angeles County Superior Court. This article is entitled "Prosecution of Doctor in Overdose Cases Worries Physicians."

Ms. Tseng who surrendered her license last year has been charged with manslaughter for allegedly prescribing painkillers with little or no medical examination to three patients who later overdosed. For the record, Ms. Green does not and has not represented Ms. Tseng and would never comment on a current or former client.

Given the emphasis on the rise of prescription drug abuse and addiction in the United States, physicians who prescribe narcotics for pain management are caught in the cross-hairs of this "war" against prescription drug addiction. Any physician who prescribes pain medication -- even on occasion -- should keep up on this issue and ensure that their medical record keeping and protocols meet the standard of care.

Ms. Green just finished a Medical Board trial this week on a physician who prescribed pain medication to an undercover DEA agent and was facing an Accusation due to the deficiencies in his physical examination and record keeping. It is our belief that the DEA is reviewing CURES reports on physicians and checking to see if any patients in their 20s and 30s are receiving scheduled pain medication and other narcotics and are referring cases to the Medical Board for record review.

For more information, contact:
Green and Associates, Attorneys at Law
213-233-2260
Email: tgreen@greenassoc.com
Website: www.greenassoc.com

Can Hospital Chains Improve the Medical Industry? Interesting Article In The New Yorker

One of my favorite writers on health care is Atul Gawande, M.D. (author of "The Checklist Manifesto" which I highly recommend to all health care professionals and other professionals). He has a recent article in The New Yorker magazine that I highly recommend entitled "Big Med: Restaurant Chains Have Managed To Combine Quality Control, Cost Control and Innovation: Can health Care?"

Read this article when you have time and think about how you would apply it to your own practice or business. How do you deliver a range of medical or other professional services to people at a reasonable cost and with a consistent level of quality? Can the innovations in other industries be applied to health care?

Posted by Tracy Green, Green and Associates, Attorneys at Law
Email: tgreen@greenassoc.com
Phone: 213-233-2260

Los Angeles Physician Acquitted of Misdemeanor Criminal Charges

On Wednesday, June 12, 2013, Lance Everett Wyatt, M.D. was acquitted of six misdemeanor charges following a 10 week jury trial. Dr. Wyatt took the case to trial and prevailed on all counts so kudos to him in fighting these allegations. The jury found that there was no intentional secret recording of patients and returned "not guilty" verdicts on all six counts.   

The investigating agency was the Medical Board of California’s Operation Safe Medicine. The case was prosecuted by the Los Angeles City Attorney's Office. The investigation began in August 2011, the case was filed in August 2012 and it has taken another year to take the criminal case to trial and obtain acquittals.  

This case arose because there were allegations that on August 4, 2011, Dr. Wyatt made secret video recordings of two patients who were seeing the doctor for post-surgical care and were undressed. It is alleged that one of the patients discovered a camera in the office, fled with the camera and turned it over to the police.  The investigation in this case appears to have been one that was not thorough and relied heavily on the statements of this one patient. 

Dr. Wyatt, who testified at trial for 9 days, stated that one patient had consented to be recorded and that the camera turned on accidentally and inadvertently recorded the other patient but that it was a mistake and not intentional.  In addition, a medical expert witness provided testimony supporting Dr. Wyatt's examinations.  

The charges on which acquittals were obtained were: two counts of Penal Code (PC) 647(j)(3)(1)(the unlawful filming of another); two counts of PC 647 (j) (1) (unlawful viewing of another); one count of PC section 243.4(c) (sexual battery on a patient); and one count of PC 242 (unlawful use of force and violence -battery) on another.  This case appears to have been overcharged since the battery counts are unusual in alleging an improper touching and for  allegedly based on taking too long with an exam. 

The Medical Board should now do the right thing and terminate its investigation of Dr. Wyatt based on these allegations. However, since there is a different burden of proof in administrative hearings, the Medical Board has not reported how it will proceed.  For some reason, even more than two months later, the restriction on practice that was issued by the judge in the criminal case requiring Dr. Wyatt to have a third party present when examining, consulting, photographing or videotaping a patient is still in place according to the Medical Board. This should be modified or deemed to be not in place given the result in the criminal case. However, the Board can take administrative action on its own even after an acquittal given that there is a lower burden of proof. We will see how the Medical Board proceeds.

One of the difficult things about sexual allegations with physicians is that the Medical Board tends to assume the patients are telling the truth even if there are great inconsistencies or credibility issues and prefer the cases go to administrative hearing so an administrative law judge can make those determinations.  It seems this same approach was handled in the criminal case which is why the case went to trial on an apparently weak case. The jury took less than 5 hours to come back with not guilty verdicts after a 10 week trial.   

This type of case based on weak allegations is a clear reminder why we recommend that physicians someone else present during physical exams that involve disrobing and have that person mark the medical chart so the physical presence can be documented. Although it is an extra cost, it can pay for itself given that anyone can make a false allegation and then there is a "he said/she said" situation. We have represented numerous physicians who were falsely accused of improper physical contact or making inappropriate sexual comments that could have been resolved easily if there had been a medical assistant in the room the entire time.   

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

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. 

LA Times Article On "In Store Clinics Look To Be A Remedy For Healthcare Law Influx"

Gary Friedman/Los Angeles Times

In being a healthcare law lawyer, it is important to see ahead and get ahead of the curve. For years, I have been telling my physician clients about the trend for stores like Walmart to have in-store clinics and the need for clean, professional cash clinics. Especially with the large number of uninsureds or insureds with high deductibles - cash clinics for primary care issues like physicals, flu, etc. have a niche.

I have seen the trend in insureds going to a cash clinic in Los Angeles where they can see a physician or physician assistant or $50 for a routine matter because they do not want to pay a $20 copay on top of another $150 deductible.

Stores like Walmart, CVS and others were willing to open these clinics and know that they were going to make money on the ancillary services. With California's strict rules on the corporate practice of medicine, we have not seen many of these in store clinics. However, we see independent optometry practices at Target and Costco that comply with the prohibition on the corporate practice of medicine.

For those interested in the topic, the Los Angeles Times article "In Store Clinics Look To Be A Remedy For  Healthcare Law Influx" explores how these in-store clinics are looking to the fact that more people will be insured in the future. The article gives an example of a mother who took her son to a CVS clinic for a physical for sports for $49 because her son's insurance would not cover it until August and it would cost $150 at his physician's office. Look at what the big players are doing in healthcare when thinking about your own approach to your practice.

800 West 6th Street, Suite 450
Los Angeles, California 90017

Recent Success Story: Nursing Student With Recent DUI Given Unrestricted RN License After Appealing Denial Of License

Last summer we had a victory in an appeal of a denial of an RN application before the Board of Nursing. This cases are more common now since the Boards are much stricter on rejecting license applications if there is a prior conviction - especially one for driving under the influence.  

A summary of the facts and strategy will show how these cases are handled and can be guided to a successful result or "win."  Although this was a RN application, the process is similar to other types of licensees when they are denied licenses and appeals are filed.

Factual and Procedural Background Surrounding 
Appeal from Denial of a License. 

• In December 2010 while in an RN program, the nursing student was convicted of driving under the influence of alcohol and placed on 3 years probation. There were no other convictions or other alcohol or drug-related problems in his background.
• In September 2011, while still in his RN program, he filed an application to take NCLEX-RN. He did not have counsel and submitted his own letter regarding the DUI conviction. I often find that early representation by counsel helps create a better package and record of mitigation and rehabilitation. 
• In November 2011, the Board of Nursing asked for more information regarding the criminal conviction. The nursing student still did not have counsel and handled the response himself. While he did his best, it was not how we would have recommended proceeding.
• In December 2011, the Board of Nursing denied the application for licensure by examination based on the recent DUI conviction with a high blood alcohol content. At this point, we were hired and filed a timely Notice of Appeal. 
• We immediately began to work with our client and prepared a significant mitigation package that had a lot of different moving parts, letters, reports and documentation. We began negotiations with the Deputy Attorney General assigned to the case on behalf of the Board of Nursing. 
• It took four months to get the mitigation package completed that we wanted and it was submitted to the Board through the Deputy Attorney General. The typical settlement for this type of case is a provisional license that requires the licensee to be on probation once the NCLEX is passed, and those terms are negotiated. 
• Due to the strength of the mitigation package and work we did and had our client do, in May 2012 the Board of Nursing declined to pursue any discipline against the client and he was approved to take NCLEX and the case was transferred to the licensure department. 
• In July 2012, our client was notified that he had passed his NCLEX and became a licensed RN. 

This was a great win since it would have been very difficult for our client to get hired if he had been on probation. It would have cost him a great deal of money over three years in lost income while on probation and would have been a permanent mark on his record that would have hurt his career. We estimated there would have been more than $100,000 in lost income and saved expenses over 10 years. Every case is different and this client was willing to work hard and do all the things needed for us to make him shine before the Board. 

Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced nurse attorney, license attorney, and board hearing attorney at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. 

Tracy Green Quoted In Sac Bee Article "Legislation Aims to Crack Down On Illegal Medical Spas"

Robert Kneshke/Shutterstock

Medical spas are the latest focus in California's legislature. Tracy Green was quoted extensively in an article in the Sacramento Bee entitled "Bill Aims to Crack Down on Illegal Medical Spas" by journalist Anika Anand.

Why is this such a big issue in California? First, California has some of the strictest laws prohibiting the "corporate practice of medicine" in the United States. In plain English this means that in Californa a business corporation which is not owned by a physician or is not a professional medical corporation (at least 51% owned by a physician) can NOT employ a physician or nurse to provide professional medical services. There are some exceptions for hospitals and HMOs.  Some states like Arizona and Nevada do not have these laws and allow non-physicians to own medical practices.

Second, this is about money. Dermatologists, plastic surgeons, and other physicians are seeing business people open "medical spas" offering Botox, Juviderm, laser hair removal and other "medical" treatments at a lower cost because they do not have a physician on site and are undercutting prices and taking their business. The ability to get patients to pay cash (no insurance reimbursement) for these cosmetic and anti-aging medical procedures is a big draw since our aging population is willing to pay for these procedures.

Third, people opening medical spas do not hire attorneys at the outset -- even for a couple of hours -- to make sure they are complying with state laws. There are so many medical businesses that do not comply with the laws that they fail to realize they are violating state laws and are committing felonies. Failure to understand the laws is not a defense to the unlicensed practice of medicine charge.

Fourth, this crackdown follows Medical Board hearings regarding the level of supervision of nurses who perform cosmetic procedures such as Botox injections and laser hair removal. There was a push for higher level of supervision for these procedures but that could adversely affect nurses' ability to perform procedures in hospitals and clinics that are not cosmetic related. The increased enforcement seems to be a result of those hearings.

Finally, the Medical Board seems to be using these criminal cases in order to deter others and send a message out to the medical community. If an individual hires a physician to be a medical director and a nurse to perform Botox or laser hair removal - it is a felony or misdemeanor of practicing medicine without a license. It is a Business and Profession Code violation and under the current laws no one need prove intent to defraud or criminal intent. The physician can be charged with aiding and abetting the unlicensed practice of medicine as well. This means it is easy for the government to shut down illegally structured medical spas, execute search warrants and charge the individuals involved. 

How many medical spas are in California? We do not know. Medical spas are not required to register with any official government agency, so there is no way to obtain an exact count. The legislature's concern is that a significant number of the "medical spas" are operating without proper medical supervision. California is currently proposing to strengthen its laws governing medical spas and in the meantime the Medical Board is initiating criminal investigations and cases against medical spas that are not legally compliant.

In my opinion, this crackdown and proposed legislation is unnecessarily detrimental. The maximum fine would be increased from $1,200 to $50,000 and the jail time would also be increased substantially. This would unfairly target those unfamiliar with the existing operating guidelines. There are more effective ways to ensure compliance with business regulations than criminalizing the conduct.  While I understand the importance of compliance and have worked in my own practice to help various spas achieve fully compliance, this new law would be overly harsh. For physicians and nurses, the criminal charges could adversely affect their licenses.

Extreme criminal charges are heavy-handed unless the case involves repeat offenders or people who have been told that this is the law. Rather than focusing so many resources on intensive investigation and prosecution, the state should be concentrated on making people aware of the proper way to operate these types of businesses.

For further reading on this matter, please refer directly to the Sacramento Bee article where I am quoted. In the meantime, the key word is get compliant as soon as possible and seek legal advice BEFORE you open your medical spa business. If you have already opened a medical spa or aesthetic medical practice, get compliant ASAP.

Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced health care attorney and medical spa attorney at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.  

Recent Nursing Trend: Nurses Going Back To College For 4-Year Degree To Meet New Requirements

The New York Times' article "More Stringent Requirements Send Nurses Back to School" (June 23, 2012) highlights more stringent requirements that hospitals and other employers are requiring of R.N.s in today's world. Hospitals which often pay the best, especially teaching hospitals, are beginning to require a 4-year degree for hiring. It is time to consider more education in order to stay competitive in the marketplace.

I have also been encouraging my nurse clients with 4-year degrees to consider becoming advanced practitioners such as Nurse Practitioners or Certified Nurse Midwifes since that gives them the ability to practice more independently under a physician's supervision. It makes practice in a private setting more rewarding as well.

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

Indiana Doctor Pleads Guilty To Excessive Prescribing - Is Your Practice Complying With State And Federal Laws And Guidelines?

On June 22, 2012, an Indiana doctor Ray Howell plead guilty to charges that he excessively prescribed narcotics and his plea agreement included surrendering his medical license. Indiana officials claimed that Dr. Howell issued over 11,000 prescriptions in a year. Howell plead guilty to 5 felonies including unlawful distribution of oxycodone. The DEA and state law enforcement are concerned that in some parts of the country prescription drug abuse has overshadowed methamphetamine and other unlawful drugs.

Howell's case is a reminder to physicians of what can go wrong in pain management. For those physicians who dispense pain medications as part of their practice it is important to learn from such cases without being fearful of prescribing narcotics. There is a legal way to prescribe controlled substances for intractable pain.

The law in California is that "No physician and surgeon shall be subject to disciplinary action by the board for prescribing or administering controlled substances in the course of treatment of a person for intractable pain."  Cal. Bus. Prof. Code Section 2241.5(c). How do you as a physician ensure that you fall within this law?

The first place to start is to review the California Medical Board's Guidelines for Prescribing Controlled Substances for Pain. This is a summary of the standard of care for managing pain patients. It has detailed advice that you are expected to know before you prescribe narcotics for pain management.

Second, review and comply with the DEA's Practitioner Manual to ensure you are complying with federal rules and regulations. It is usually the DEA who sends in undercover patients and initiates investigations when the CURES reports show a large number of prescriptions from a physician. There are more cases of state and local law enforcement getting involved in undercover operations as well but the DEA is in the forefront.

Third, seek legal and expert advice to make sure that your practice is compliant with existing laws, regulations and medical standard of care. If you did not comply with the existing rules in the past, it is not too late to change your practices and become compliant.

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 physician 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/

Owner of Sports Bars Charged With Under-Reporting Payroll Faces Felony Charges For Unemployment And Workers’ Compensation Insurance Fraud And Filing False Tax Return With EDD

Everyone has always known that underreporting payroll or paying employees cash under the table could result in tax issues or civil liability if a worker is injured. However, now such actions can result in criminal charges. Therefore, paying an employee cash off the books can be a serious liability risk for companies and its owners.

In a recent case, not only was the owner of a California business charged with unemployment and workers’ compensation insurance fraud but she was also charged with filing a false tax return with the California Employment Development Department (EDD).

Renee Anne Vicary, age 51 years, allegedly owned and operated four businesses: Angels Sports Bar and Gentleman’s Club in Corona; Angels Sports Bar and Grill in Anaheim; Angels Roadhouse in Yucaipa; and Angels Roadhouse in Apple Valley. Angels Sports Bar in Corona was featured on an episode of the Spike TV show “Bar Repair” in July 2011 during which it was renamed Racks Billiards and Bourbon.

According to the the Riverside County District Attorney’s (RCDA) Office, the investigation began nearly two years ago after they received information that Ms. Vicary was underreporting her employee payroll at the Corona location. It is common that investigations begin by someone reporting the wrongdoing (often former employees).

The RCDA alleges that the insurance policy listed Ms. Vicary as employing four employees at each of the Corona and Anaheim businesses and three employees at each of the two San Bernardino County businesses. Investigators allege that Ms. Vicary actually employed more employees at each of the four locations than found on the insurance policy.

Following this discovery, search warrants were served at all four businesses as well as Ms. Vicary’s Corona home and several financial institutions. It took many months for EDD and three insurance companies used by Ms. Vicary to complete audits. Once those audits were done, it was alleged that losses were in excess of $340,000. She was then charged by the RCDA’s Office with the following felonies: (1) filing a false tax return with EDD, (2) failure to collect and pay tax to EDD, (3) willful misrepresentation to obtain insurance, and (4)  willful misrepresentation to obtain Worker’s Compensation Insurance.

Ms. Vicary was arraigned on June 13, 2012, in Dept. 41 at the Hall of Justice in Riverside, following her surrender in court on an arrest warrant that was issued last month. She entered not guilty pleas and has a felony settlement conference scheduled for August 13, 2012.

A felony complaint is only an accusation and is not evidence of guilt. Ms. Vicary is presumed innocent and is entitled to a fair trial at which the government must prove guilt beyond a reasonable doubt.  

If convicted as now charged, Ms. Vicary faces up to a maximum of 14 years, four months in prison even though such a high sentence is very unlikely in this case. Typically in these cases, the amount of restitution paid is a factor in plea negotiations. The case is being prosecuted by the RCDA’s Insurance Fraud Unit.

Attorney Commentary:  This case shows how small businesses can get into criminal trouble for bad business decisions that did not used to be prosecuted as crimes. Some employees may even ask to be paid cash for their own purposes (liens, support obligations, etc.) and employers have to be careful not to do “favors” for their employees and pay them cash. All it takes is one accident at work, one cash employee filing for unemployment or a disgruntled employee to create a criminal case. It’s simply not worth it in today’s world.

What is the fraud? The DA’s Office alleges that the business failed to put the employees on payroll to save money in workers’ compensation premiums and EDD insurance. Even if that was not the company’s motivation, the company would have submitted paperwork under penalty of perjury regarding total payroll to EDD and its workers’ compensation insurance carriers with payroll totals that do not reflect the amounts paid to cash employees.

The State runs EDD and collected the unemployment insurance premiums and has decided to criminalize this conduct rather than conducting audits and collecting the money. If you face an audit, it is important to engage an attorney early and avoid having these type of investigations escalating. It is not clear what went on during the years that Ms. Vicary’s businesses were being investigated but often if the audit is handled early in a professional manner with a repayment for premiums or cash employees, a criminal case can be avoided. Every case is different but it is important to understand that each county DA office has special units for these types of cases and there is a trend towards more aggressive prosecutions of these offenses.

We have represented many employers for issues with underreporting workers' compensation premiums including issues where employees where paid cash, misclassified as independent contractors or with lower risk job titles and related issues. The earlier counsel is obtained, the better since waiting until after the audit is completed and the case is referred out makes it more difficult to resolve. We evaluate the issues and seek to ensure that mistakes and errors do not appear to have the indicia of purporseful underreporting.  

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.  

Tracy Green is a very experienced California insurance fraud attorney, worker's compensation premium fraud attorney and Los Angeles white collar criminal defense attorney.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil,administrative and criminal proceedings. They have a specialty in representing companies and individuals in insurance fraud related matters in California. Their website is: http://www.greenassoc.com/

Former Physician Charged With 2nd Degree Murder For Three Patients' Prescription Overdose Deaths - Preliminary Hearing Continues In Unusual L.A. Case

Luis Sinco/Los Angeles Times

The unusual case of Dr. Hsiu-Ying "Lisa" Teng (who surrendered her license) continues in downtown Los Angeles today June 11, 2012 where a preliminary hearing is being held to determine if there is probable cause to charge her with second degree murder in the death of three patients who overdosed on prescription drug in 2009. A Los Angeles Times article "Former Patients Tells of Easily Getting Drugs From Doctor" covered the preliminary hearing on June 9 which has lasted a week.

The prosecution on Friday called a former patient of Tseng's and there were a number of patient witnesses who said Tseng failed to adequately examine and diagnose them and prescribed addictive narcotics despite warning signs that they were abusing prescriptive drugs. However, this former patient admitted that he lied to the then doctor about having fibromyalgia so he could get the drugs he wanted.

An undercover agent from the California Medical Board testified that he posed as a patient three times and that he told Tseng he was a former heroin user and he shared the pills with a friend and his sister.

Tseng is just one of a few doctors nationwide to be charged with murder related to prescription drugs. The murder charges could be hard to prove because the victims played a role in seeking out the drugs and taking them and then overdosing on them or other drugs. The defense will be sure to question where is the patient's responsibility who decided to lie to obtain the drugs and then to take them. However, the evidence needed to hold Ms. Tseng to answer at a preliminary hearing is quite low -- reasonable suspicion to believe a crime has occurred -- but this will give the defense a preview of the government's case.

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.  

California Medical Board Increases Investigations, Search Warrants And Arrests In Medical Spas And Practices Offering Laser Skin and Hair Procedures, Botox and Injectibles: Time To Make Sure Your Practice Is Compliant!

If your medical practice or medical spa offers laser hair removal, botox, injectibles, laser skin treatment, or sales of prescribed items such as Latisse or Retin A – it is time to make sure your practice is compliant. Why? The Medical Board of California is aggressively investigating the unlicensed practice of medicine. It has a separate department called “Operation Safe Medicine.” 

This investigation is not limited to backroom medical practices but includes practices owned by physicians where the level of medical supervision is not sufficient, nurses operate a laser for hair removal where there has not been a good faith or "directed" medical exam by a physician or advanced practitioners such as a physician assistant or nurse practitioner, and receptionists selling Latisse to patients without a good faith medical exam and prescription. Nurses who are used to hospital settings are often surprised at the requirements in a clinic setting for seemingly routine procedures such as laser hair removal. 

If you are a “medical director” for any practice offering these medical services or a plastic surgeon or dermatologist using nurses, it is critical that the practice is compliant since you could be charged with aiding and abetting the unlicensed practice of medicine.

I recently concluded a criminal case where a physician did a “favor” and agreed to be an unpaid medical director for a location offering laser hair removal but did not have any presence at the facility. This led to a criminal case being filed and disciplinary charges. The case was resolved where the physician kept her license but if there had been compliance and the physician understood the law at the beginning – the case never would have happened. 

I had another case where a plastic surgeon client allowed an independent contractor registered nurse to inject Botox without a good faith medical exam by the physician. The compliance changes I drafted were instituted immediately and the Medical Board investigation was closed without incident. I have had numerous cases where compliance was successfully instituted to avoid the possibility of any Medical Board complaints or investigations.

Why am I writing this article? Just in the last three weeks, I know of 3 cases where there have been search warrants and/or arrests. Apart from the cases I am handling, the Medical Board issued a press release on June 8, 2012 where it announced the arrests and felony charges against a non-medical owner of Laser Solutions in Beverly Hills, CA for practicing medicine without a license. 

In the past OSM has focused on a variety of unlicensed practices (selling contact lenses without prescriptions, unlicensed midwifes, etc.) but lately the cosmetic practices are targeted. The climate is not favorable for these practices and the Medical Board is sending in undercover agents. There have been hearings at the Medical Board about the level of supervision for nurses in medical spas and cosmetic practices and one of the outcomes of these hearings was increased enforcement. 

How do these cases get initiated? Often they are complaints from competitors or former employees. The complaints are rarely filed by patients. In my experience, I have seen physicians and nurses remain vastly ignorant of the rules and regulations and unintentionally violate the law. If your practice is not compliant or you are not sure, now is the time to change your practices and procedures. In some cases, ownership also needs to be modified. Seek experience counsel and become compliant. Do not fear that by making changes you will be admitting guilt. Just become compliant.

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

 Any questions or comments should be directed to Tracy Green a very experienced Medical Board attorney, health care litigation attorney, medical spa attorney, physician attorney, and nurse attorney. She is very familiar with the issues of ownership, corporate practice of medicine, unlicensed practice of medicine and related issues in cosmetic areas. The firm website is: http://www.greenassoc.com/

Beverly Hills Dentist And His Office Manager Charged With Insurance Fraud by Los Angeles D.A.'s Office - Nurse Charged In Related Case

A Beverly Hills dentist and his office manager have been charged with insurance fraud and other felony counts in a state criminal case pending in Los Angeles County Superior Court. 

On May 3, 2012, the Los Angeles County District Attorney's Office (Healthcare Fraud Division) charged Beverly Hills dentist Tom Kalili on a 101 felony count complaint (Case No. BA394506) alleging insurance fraud, grand theft and tax evasion. The allegations relate primarily to Dr. Kalili's acts as the owner and operator of Beverly Hills Medical Suite (BHMS). The office manager Claudia Ventura was also charged with ten felony counts.

A felony complaint is only an accusation and is not evidence of guilt. Dr. Kalili and Ms. Ventura are presumed innocent and are entitled to a fair trial at which the government must prove guilt beyond a reasonable doubt.  

What is alleged in the criminal complaint? It is a wide-ranging complaint. First, according to detectives from the California Department of Insurance (CDI), Dr. Kalili, acting as the owner and operator of BHMS, directed his office manager Ms. Ventura to knowingly submit fraudulent billing statements to four separate insurers in the amount of $339,799.99. 

It is alleged that BHMS submitted billing for services not rendered and in most cases the billing involved emergency dental procedures that were never performed. It is also alleged that BHMS submitted false medical reports in support of the fraudulent billing, which generally included fictitious mechanisms of injury.

Second, the investigators looked at Dr. Kalili's own insurance claims for automobile accidents and filed counts relating to them. The case alleges that Dr. Kalili submitted two fraudulent insurance claims on behalf of himself and his son to two automobile insurers. These claims included medical reports alleging he received treatment in auto accidents in 2005, 2008 and 2009 and his son for treatment received for injuries sustained in a 2009 auto accident. The detectives contend that these medical reports were fraudulently prepared and that the dentist listed as providing treatment for the injuries claimed by Kalili denied performing the services listed.

Third, the complaint alleges counts relating to tax counts: filing false tax returns/failure to file tax returns and tax evasion.  

In a related case, Marti Quinn, a nurse who allegedly received over $11,000 from a fraudulent claim submitted by BHMS was charged in a separate criminal case with insurance fraud. 

Commentary:  It appears that this case was under investigation since June 2010 after a report was sent to the California Dept. of Insurance, fraud division, that BHMS was submitting fraudulent medical bills for emergency dental work that was not provided to patients. Thus, these type of cases generally take a long time to investigate and charge.

This investigation involved a number of different agencies and companies: the California Dental Board, California Department of Insurance, California Franchise Tax Board, Anthem, United Health Care, Blue Shield, CIGNA, AAA, and Mercury Insurance. With computerized records, coordinated investigations are easier to conduct and becoming more common.

I am seeing a trend in investigating whether the medical provider has submitted fraudulent claims relating to his or personal life. This allows the government to bring in evidence that the person has engaged in other bad conduct and allows them an alternative theory at trial if there are viable defenses in billing related to their business.

As a condition of bail, the Superior Court issued an order while this case was pending precluding Dr. Kalili from submitting any insurance claims or engaging in any "insurance billing activity" while this case was pending. Otherwise, the dentist can continue to practice while this case is pending.  

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 insurance fraud attorney and dentist 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 criminal matters in California and throughout the country. Their website is: http://www.greenassoc.com

New Rules Require Revocation Of Physician Assistant License If Registration As Sex Offender Required - Critical To Have Chaperones And Be Careful Of Plea Agreements Involving Sexual Issues

Over the years I have represented physicians, physician assistants, nurses and other health care professionals who have been accused of unlawful "touching" by a patient. In a number of these cases, the allegations were false. For example, one high profile gynecologist was accused of sexual touching when he conducted a breast exam of a 55 year old woman with fibroid breasts both with her laying down and sitting up. Since she had never had a breast exam where she was sitting up, she made a complaint. The complaint was dismissed but it was an unpleasant interview for the physician to go through simply because he was being thorough.

A few years ago, a physician assistant was accused of sexual touching because he placed the stethoscope just under the area near the breast while he listened to the heart -- very standard routine exam. The complaint was dismissed but only after an interview and investigation.

Recently, I was asked to consult on a case where a physician was charged criminally with a violation of Business & Profession Code 726 which prohibits sexual contact with patients since the physician had consensual oral sex with a patient.

Currently, I am representing a health care professional who is accused of touching a woman's breasts over the clothes during an exam. The case has been filed criminally since the same complaint was made by two different women and the present plea offer is a misdemeanor but with a requirement that he register as a sex offender. The sex offender registration is part of the regular plea offer. In his case, it would not be a bar to practice but if he were a physician assistant it would be a bar.

The Physician Assistant Committee in California has decided to increase the level of discipline for any physician assistant who has had sexual contact with a patient or who has been convicted of  a sex offense as defined in Section 44010 of the Education Code. Under the revised California Code of Regulation 1399.523 there is a finding that any proposed decision "shall contain an order revoking the license" and that "[t]he proposed decision shall not contain an order staying the revocation of the license."

What does this mean? First, if a physician assistant has sexual contact with a patient in violation of Section 726 or is convicted of any sex offense defined in Education Code Section 44010 which includes any registration as a sex offender -- the physician assistant's license will be revoked and is not eligible for probation.

For those unfortunate enough to be charged with any offenses related to sexual touching or gratification, any defense or plea of such charges needs to consider this important change.

For those that are practicing, it is critical that the use of chaperones -- especially for male PAs -- be considered as a routine policy. It should be essential during physical exams especially during breast and pelvic exams. However, all the patient needs to allege are things like touching a breast over clothes, rubbing a penis against a leg during a physical exam -- and there can be a critical issue. I have seen such allegations and they seem to be increasing for a variety of reasons and most of the cases I have handled have been false or exaggerated claims.


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 physician assistant attorney, health care attorney, and California 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/

Giftcards To Patients: Walgreens Pays $7.9 Million To Settle Lawsuits That Its Giftcards Were Kickbacks To Illegally Induce Transfer Of Prescriptions To Its Pharmacies

Have you ever seen a chain pharmacy's offer that if you transfer a prescription, you will receive a $25 gift card for use at their store? I have and I always wondered how their legal counsel could have signed off on that proposal given that if one of my non-chain pharmacies had ever given a gift card for $25 to patients, they would have been charged criminally. 

The difference between large chains and small providers is that large chains usually have legal opinions that help prevent criminal prosecutions and the ability to pay large fines. This is what happened to Walgreens.

On April 20, 2012, Walgreens, the largest drugstore chain in the nation, paid the United States and participating state governments $7.9 million to settle allegations that it paid kickbacks to illegally induce the transfer of prescriptions to its pharmacies. The settlement was announced on April 20 when the federal and state governments learned that federal judges had unsealed allegations contained in two “whistleblower” or qui tam lawsuits filed against Walgreens by two Walgreens employees. The federal lawsuits were filed in Los Angeles and Detroit.

The settlement resolves allegations that Walgreens illegally offered gift cards and other incentives as kickbacks to customers covered by government-funded health insurance programs to induce the transfer of prescriptions from other stores to its pharmacies. As part of the settlement, Walgreens did not admit wrongdoing.

The federal and state governments contended that these gift cards and incentives were "kickbacks" which resulted in the governments paying for unneeded prescriptions, small-business pharmacies unfairly losing customers to Walgreens, and patients making decisions based upon monetary incentives rather than legitimate health care needs. 

Commentary: One way that some pharmacies have attempted to ensure that such promotions do not violate state and federal law is to limit it to cash or private pay insurance and not allow any Medicare or Medi-Cal/Medicaid patients to receive any gift cards or incentives for transferring prescriptions. However, mistakes can be made and it is not clear what policies and procedures Walgreens had in place. Other chain pharmacies like CVS have had such programs as well but for smaller pharmacies or health care providers, it is critical that any such incentive programs be reviewed by health care counsel before being offered to any potential patients. 

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 health care fraud attorney and civil qui tam defense 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 white collar criminal and civil qui tam matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Medical Spas Under Investigation In California - Is Your Practice Legal?

The California Medical and Nursing Boards are targeting "medical spas" or aesthetic practice locations where they suspect that are owned by laypersons, nurses or other non-physicians.  They are also targeting clinics or spas where there is a suspicion of unlicensed personnel performing procedures or nurses performing services but not being supervised properly.

Undercover agents are being sent in on a regular basis. Additional investigators have been hired to help conduct these investigations. In some cases, misdemeanor charges for the unlicensed practice of medicine or aiding and abetting the unlicensed practice are being filed.  I have a number of cases where Board investigations are ongoing, cases where we have successfully closed the investigations, and a recent case where a physician, nurse and unlicensed persons were charged criminally (more about that later). In addition, disciplinary charges are being brought against some professionals for their involvement in medical spas that were not structured properly or were not being operated within all the proper legal parameters.

How Does The Board Decide Who To Investigate?

Typically, the investigations are generated by complaints by competitors. Many times the complaints are anonymous and sometimes they are someone affiliated with a competitor. It takes only a simple complaint such as "Practice X is being run and operated by a nurse" to generate a full investigation.

There are also complaints by patients which trigger these investigations -- a quality of care complaint will ultimately raise the questions of who owns the business being investigated and who are the physicians, physician assistants, nurse practitioners or nurses involved in supervision, treatment or ownership.

How Can I Prepare For These Investigations?

It is best to prepare in advance -- long before any investigator comes to your office. Hiring legal counsel knowledgeable about this field can help you save money and legal problems in the long run. If you know that your business is not structured properly -- NOW is the time to restructure and become compliant with all laws, rules and regulations. Restructuring and compliance not only includes ownership issues but also practice and supervision issues, websites, advertising, payment arrangements and related business issues. It is much cheaper to pay for preventative legal counsel than to pay for the defense of an investigation, administrative action or criminal case.

Do NOT be afraid that if you make changes now it will "look suspicious" or imply that you were doing it wrong before. The Boards look for current compliance. If you made mistakes in the past, fix them and move on so you are compliant.

The California Medical Board has publications on its website that are informative as to what is legal and what is not legal and serves as notice to physicians on this issue. For example, "The Bottom Line: The Business of Medicine - Medical Spas" warns physicians about being "medical directors" and lending their license for clinics or spas for which they have no legal ownership or responsibility. In addition, the Medical Board has a publication entitled "Use of Mid-Level Practitioners for Laser, Dermabrators, Botox and Other Treatments" that is a helpful outline and should be read by anyone in this business.

In addition, it is important to understand that California is a state that does not allow the "corporate practice of medicine" or ownership of a medical practice by unlicensed professionals. However, there are ways to structure professional medical corporations that are owned 51% by a physician and 49% by other licensed health care professionals such as nurses, physician assistants or nurse practitioners.


What Should I Do If An Investigator Sends Me A Letter Or Comes To My Office?

Do NOT agree to be interviewed without legal counsel. Be friendly and arrange for any interview to be held while you have your counsel present. If you believe you are legally compliant, get together all the business records, delegation of service agreements, protocols and other information you will need. If you are not legally compliant, it is time to do so ASAP. Do not get paralyzed and take action.


What Type Of Cases Go Criminal?

Based on my experience, the cases that go criminal are where unlicensed personnel like medical assistants are performing procedures such as laser hair removal, Botox, etc. or where the corporate structure of the business is illegal on its face (the nurse or nursing corporation owns the business and the physician is a "medical director" for little or no pay).  In one recent case, not only was there an illegal structure but the physician and nurse submitted to interviews and admitted to damaging facts.

An important rule is do NOT agree to be interviewed without legal counsel. Be friendly but insistent that any interview be held later. Then have your attorney arrange for any interview to be held at a later date.

In sum, most cases do not result in criminal charges. However, if your business is not legally structured, now is the time to fix this issue before anything else happens. I have had numerous clients who were not structured legally -- but I helped them become legally compliant long before any investigator showed up at their office or right after the investigator from the Department of Consumer Affairs sent a letter.

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 medical spa attorney, health care law attorney, and Medical Board and Nursing Board attorney at tgreen@greenassoc.com. See the difference that having an experienced lawyer makes.

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 and in administrative board and discipline matters in California and throughout the country. They are currently accepting new clients. Their website is: http://www.greenassoc.com/

Embezzlement Cases On Rise In California As Economy Is In Decline -- Will I Have To Go To Jail For Embezzlement?

I was in Los Angeles County Superior Court this week on a relatively small embezzlement case (under $5,000).  The judge remarked that he had over 20 embezzlement cases in his courtroom alone that week and his is not a settlement or early disposition court.  The economic pressures have made these cases more common even though embezzlement is more complex than the economy since there often can be an addictive component to the behavior.

In some other cases the past, the embezzlement was discovered and we were able to work out civil settlement agreements with the employer without any criminal action. In many cases, the client faces both the criminal and the civil case.  Some companies file civil cases so they can be in control of the litigation which they do not have in criminal cases.

In the small amount case this week, the client discovered the case when he was was contacted by a LAPD detective for an interview. I intervened and refused to let him be interviewed.  The detective shared the documentation against him and informed me that he had already decided to charge him. I arranged a self surrender and bail. The case against him was well documented and the client was very remorseful. There was an offer of no jail time if restitution was paid in full.  

In contrast, in downtown Los Angeles last week, I saw a plea and sentence on April 18 in Division 50 (the early disposition state court) by a woman who admitted to embezzling more than $4.6 million from 17 different companies from 2003 to 2009. She did not have a plea agreement with the D.A.'s Office but instead "plead open" to 17 counts of grand theft and Judge Horowitz sentenced her to 5 years in state prison. One interesting thing about this case was that she was not charged until April 4, 2012 -- which was over 3 years after she left the company and the charges related back to 2003.

I also did a consultation last week on another embezzlement case where the loss was over $200,000 and a civil case has been filed before the criminal case. Strategies considered included whether to stay the civil case, settle the civil case and seek cooperation if any criminal reporting has been done, and how to handle the client's inability to pay significant restitution. 

In some cases, we are able to use our expertise and show that there was no embezzlement or that the amounts are greatly overstated. For example, if the claim is that the client abused his or her expense account or was reimbursed for expenses that are now claimed to be unauthorized -- it is not a simple taking case.

In other cases, the evidence is overwhelming and the taking involves falsification of expenses, checks and the client has already confessed to his or her former employer or law enforcement. In those cases, a common question is "will I have to go to county jail or state prison?" There is no one answer to this question but it depends on a number of factors. 

Ten common factors include: (1) criminal history, (2) facts and how easy the case is to prove and whether there are any viable defenses, (3) ability to pay restitution including borrowing money or selling assets to do so, (4) venue or where the case is filed -- Los Angeles downtown can be very different from other parts of Los Angeles County or from Ventura or Orange Counties, (5) the victim's agreement to prefer no jail so restitution can be paid, (6) other factors like mental health, addiction, and family issues, (7) the effect the loss had on the victim, (8) the role the person had in the victim's company and life, (9) whether the client is able to work and pay a significant percentage of earnings to restitution in lieu of custody, and (10) other mitigating or favorable facts that can be developed. 

Each case is different and working up the facts and mitigating circumstances can go a long way in reducing the risk of custody time. However, courts are getting tougher on sentencing for all white collar crimes, including embezzlement. Restitution is king and can make all the difference in the case. I have structured many different ways and the only limitation is our own creativity and willingness to do everything we can to get the best result possible. 

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 criminal defense attorney and civil attorney who understands and is adept at the interplay between the two. The firm focuses its practice on the representation of businesses and licensed professionals, individuals and businesses in civil, administrative and criminal proceedings. Their website is: http://www.greenassoc.com/