Author: WorkCompAcademy

The editorial board of Orthopedics Today was asked what they think are the top advances in orthopedic surgery over the past 30 years.

It is now estimated that up to 80% of orthopedic procedures are amenable to the outpatient setting and many orthopedic practices have sophisticated imaging capabilities in their office and surgery centers.

The shortened recovery and associated disability with less invasive and more stable and rigid fixation have allowed patients to be more functional sooner, and reduced the morbidity of some of the previous approaches.

More recently, steady improvement in arthroscopic techniques and instrumentation and expanded use in the hip joint has furthered this subspecialty area of orthopedics.

Improvements and innovations in materials, articulation surfaces, peri- and postoperative management strategies and outcomes research have worked together during the last 30 years to decrease implant wear and increase function following joint replacement procedures.

Hip arthroplasty has benefited from the advent of porous metals, improvements in alternative bearing surface technologies, polyethylene advances and newer procedures, such as resurfacing surgery.

Some of the developments that have enhanced knee arthroplasty over the past 30 years include unicompartmental implants, modular components, fixed and mobile bearing designs, newer polyethylenes and computer assistance.

Characteristics of current knee designs that he thought to be associated with long-term in vivo durability as:

– articular surface congruency of either cruciate retaining or posterior stabilized implants;
– minimal motion between the polyethylene and tibial base plate or elimination of motion, as in monoblock implants;
– non-aged, compression molded polyethylene with moderate crosslinking, sterilized in an inert environment;
– CoCr tibial and CoCr or ceramic coated (Oxinium) femoral components;
– mobile bearing implants; and
– congruous, capacious patellar-femoral designs.

In order to be associated with long-term in vivo durability, these designs must be inserted with instrumentation that assures consistent alignment, soft tissue balance in flexion and extension and appropriate stability,

Imaging and its use in improving outcomes in orthopedic surgery have developed concurrently throughout the past 30 years, with smaller and more convenient methods giving physicians a wider range of possibilities. Even MRI and CT have seen recent changes in their implementation, with surgeons moving toward utilizing them for patient-specific implants or guides.

The office manager and part-owner of a Reseda medical clinic known as M.T.P. Medical Clinic, Inc., has been sentenced to 51 months in federal prison for his role in a healthcare fraud scheme that generated millions of dollars – money that was not reported on his federal income tax returns.

Michael Huynh, 67, of Northridge, was sentenced by United States District Judge Otis D. Wright II. In addition to the prison term, Judge Wright ordered Huynh to pay just over $1.9 million in restitution to the victim insurance companies and back taxes – estimated to be nearly $950,000 to the Internal Revenue Service.

Following a seven-day trial in September 2016, Huynh was found guilty of one count of conspiracy to commit healthcare fraud and 11 counts of filing false tax returns.

The evidence introduced at trial showed that between January 2004 and November 2009 Huynh and a pharmacist participated in a healthcare fraud scheme that billed private insurance plans for prescription medication that was never dispensed to insured patients.

Huyhn provided co-conspirator Farhad N. Dany Sharim with bogus prescriptions purportedly for patients of the medial clinic who were insured by healthcare benefit programs such as Aetna. Sharim, a co-owner of Century Discount Pharmacy located at 18254 Sherman Way in Reseda, then submitted false and fraudulent bills for prescription drugs that had not been dispensed to the patients.

As a result, Sharim’s pharmacy received substantial payments from various health care benefit programs to which it was not entitled, and Sharim paid Huyhn more than $1.1 million from the pharmacy proceeds.

In order to disguise the payments that he received from co-conspirator Sharim in exchange for the falsified prescriptions, Hunyh provided co- conspirator Sharim with false invoices in the name of H. D. H. Advertising for purported advertising services rendered to CDP. Hunyh received approximately eighty-two CDP checks signed by co-conspirator Sharim totaling approximately $1, 172, 907, which were disguised as payments for’ advertising services and made payable to his grandniece.

Farhad N. Dany Sharim, 57, of Sherman Oaks, previously pleaded guilty to conspiracy to commit healthcare fraud and will be sentenced by Judge Wright on May 1.

The Board of Pharmacy filed a disciplinary accusation against Century Discount Pharmacy, and owners Joseph Amin and Farhad Sharim and another pharmacist named Jong Am Kim in 2015.

The accusation said that the Boards investigation and “examination of prescription records for controlled substances raised many red flags including a repeating pattern of prescriptions written by Drs. Chumley and Rothman and Nurse Practitioner Park. Each prescription had nearly identical handwriting with similar spacing. In addition, most medical offices/clinics and patients were listed in either Compton or Los Angeles, CA, yet Respondent Century Discount Pharmacy, the pharmacy issuing the prescriptions, was located in Reseda, CA. More often than not, the patients traveled approximately 73 miles to fill their prescriptions.”

Certain prescribers responded to letters from the Board investigator. NP Park indicated that she did not write any of the prescriptions for the medications that were listed in the letter. Dr. Ahmed indicated that she had not seen the patients listed and did not prescribe any of the medications on the list. Drs. Byrd, Rothman, and Sison also indicated that they did not write any of the prescriptions on the list.

It is likely that California employers have had many workers’ compensation claims filed over the years by health care workers who claim infectious injury. Some of these workers may have been wearing safety equipment sold by Kimberly-Clark Corporation and Halyard Health Inc. Claim department data mining and data analytics may identify these past and present claims.That discovery may lead to subrogation or a setoff petition should the claimants also be plaintiffs in the Los Angeles Class action filed against these companies.

A Los Angeles jury on Friday night hit Kimberly-Clark Corporation and Halyard Health Inc. with a stunning $454 Million fraud verdict due to the sale by the companies of defective medical devices to doctors, hospitals and trauma centers throughout California for years.

The unanimous verdict, rendered by an eight-person Federal Court jury after hearing extensive evidence in the two-week trial, is likely one of the largest verdicts in U.S. history against a medical device maker. Pursuant to an indemnification agreement entered into between the two defendants, Halyard Health is obligated to pay the entirety of the $454 Million awarded by the jury.

The class action lawsuit, Bahamas Surgery Center, LLC v. Kimberly-Clark Corp et al, Case No. CV 14-8390-DMG, was filed in Los Angeles in United States District Court in October 2014, alleging that the defendants had committed fraud in the marketing and sale of certain of their medical gowns used in critical surgeries.

In particular, the suit claimed that the companies had falsely represented to the FDA, health care workers and the general public that the company’s “Microcool Breathable High Performance Surgical Gowns” (the “Surgical Gowns”) were impermeable and provided protection against serious diseases, including Ebola and HIV, despite the fact that the companies had known since 2012 that the gowns were defective, failed industry tests, and did not meet relevant standards, thus placing healthcare professionals and patients at considerable risk for infection, serious bodily harm and death.

The jury sided with the Plaintiffs Friday and found that the companies had concealed material information from healthcare professionals throughout California and had carried out their scheme with malice, oppression and/or fraud. “This fraud verdict should send a clear message to corporations throughout the United States that concealment and cover-up are not part of doing business,” said lead attorney Michael Avenatti of Eagan Avenatti, LLP, on behalf of the Plaintiffs.

The evidence presented at trial showed that Kimberly-Clark and Halyard knowingly misled the medical community, regulators and the general public about the safety of the Surgical Gowns and even after learning of multiple test failures, failed to alert the FDA, healthcare professionals and patients. Internal e-mails and documents from the companies showed employees describing the manufacturing process as “crap” and admitting that they were knowingly using defective and substandard equipment to make the gowns in Honduras.

Instead of recalling the gowns and disclosing the truth, the companies concealed what they knew, fired employees who knew too much and continued promoting, marketing and selling the gowns by stating they were impermeable, even going so far as to recommend that the gowns be used when treating patients with serious infectious diseases, including Ebola and HIV.

The Plaintiffs were represented at trial by Michael Avenatti, Ahmed Ibrahim and Filippo Marchino of California-based Eagan Avenatti, LLP, together with William C. Hearon of William C. Hearon, PA, based in Miami, Florida.

Miami lawyers expect a recent state court victory to pave the way for billions of dollars from liability and workers’ compensation insurance carriers across the nation to flow back to Medicare and its beneficiaries.

The attorneys, John Ruiz and Frank Quesada of the firm MSP Recovery, are going after major liability insurers for allegedly shirking their duty to reimburse Medicare benefit providers for conditional payments. Under the Medicare Secondary Payer law known by the acronym MCP, the government can recover double damages from a primary payer that fails to pay Medicare back for medical expenses covered by a liability policy

The home page of the firm boasts of the slogan aimed to attracted its clients who are Medicare Advantage insurance companies, challenging them to “DISCOVER YOUR LOSSES – RECOVER WHAT’S YOURS.”

According to the report in Daily Business Review, “Between 8 to 10 percent of all claims that are made through Medicare or Medicare Advantage Organizations are the responsibility of another payer,” Ruiz said – think car crashes, slip-and-fall accidents and workers’ compensation claims. “That’s a substantial amount because Medicare is paying in the vicinity of $600 billion a year.”

No attorney had ever secured class certification under the Medicare Secondary Payer law. A nuanced interplay between federal and state laws made it difficult to establish common issues of law and fact.

But MSP Recovery overcame those obstacles in Miami-Dade Circuit Court, where Judge Samantha Ruiz Cohen certified a class in a lawsuit against the auto insurer Ocean Harbor Casualty Insurance, a primary payer for thousands of Medicare Part C beneficiaries. In a 101-page decision, the judge ruled Medicare Advantage Organizations and others who contract with the government to provide Medicare benefits could sue Ocean Harbor as a class following an August federal appellate court decision.

That Eleventh Circuit decision, which arose from the Southern District of Florida case Humana v. Western Heritage, established that secondary payers could recover from a liability insurer if the case met three conditions: the defendant was a primary payer, the defendant failed to provide for primary payment or appropriate reimbursement, and the damages amount was established.

In state court, Ruiz Cohen ruled Ocean Harbor could not challenge the damages amounts because there was no evidence the auto insurer administratively contested any amounts paid, and the time for any administrative appeal had expired. Because of that failure to contest the reimbursement claims, all primary payer disputes arise under the Medicare Act, she ruled.

“Each class member will have incurred the same type of injury proximately caused by the same defendant based on the same general factual scenario, a failure to pay or reimburse as a primary payer for medical bills that resulted from an automobile accident during the claims period,” she wrote in the February order.

The judge also noted MSP Recovery has developed a sophisticated system to identify claims by collecting and matching data including Centers for Medicare & Medicaid Services reports, automobile crash reports, ambulance records, insurance declaration sheets and no-fault personal injury protection payout sheets.

The national penchant for claim “analytics” used to search for fraudulent claims may be a sword that swings both ways. “We’re able to figure out if someone that has had an incident – a car accident, a slip-and-fall – if another insurance carrier has reported to the government that they have a primary payer responsibility,” said Ruiz, also known for his variety of business enterprises, such as La Ley Sports.

That system has allowed the 30-attorney firm with roughly three dozen partner firms across the country to divide claims into categories and file lawsuits across the country on behalf of more than 100 health plans. Their firms boasts of about 17 class actions pending in state and federal courts across the nation.  Targeted defendants include companies such as Allstate Property & Casualty, Liberty Mutual, State Farm Mutual Automobile, Geico and others.

The class certification ruling is on appeal. Ocean Harbor attorney Shannon McKenna of Conroy Simberg in Hollywood said the company does not comment on pending litigation.

Ruiz and Quesada believe their cases will not only recover billions of dollars but will push primary payers to follow the law. The attorneys have already seen liability insurers change their payment practices because of the litigation.

“Before, it was almost like, ‘Catch me if you can,'” Ruiz said. “Now that we caught them, they are doing things differently.”

Sacramento Lopez brought an action against plaintiffs Elena Delgadillo and Jesus Cortes in 2009 (the Lopez litigation), alleging he had suffered injuries in a fall from the roof of plaintiffs’ property in Hayward, where he was working as their employee.

Lopez also alleged  Delgadillo and Cortes had violated Labor Code requirements to pay overtime wages and provide meal and rest breaks. Plaintiffs Delgadillo and Cortes tendered the defense of the Lopez litigation to their business owner’s insurance carrier, United States Liability Ins. Co. (USLI), which denied plaintiffs’ claim.

Plaintiffs’ insurance policy contained the following exclusions pertinent to this case: “d. Workers’ Compensation And Similar Laws [¶] Any obligation of the insured under a workers’ compensation, disability benefits or unemployment compensation law or any similar law. [¶] e. Employer’s Liability [¶] “Bodily Injury’ to: [¶] (1) An ’employee’ of the insured arising out of and in the course of: [¶] (a) Employment by the insured; or [¶] Performing duties related to the conduct of the insured’s business[.] [¶] . . . [¶] This exclusion applies: [¶] (1) Whether the insured may be liable as an employer or in any other capacity . . .”

Plaintiffs Delgadillo and Cortes brought this action against USLI. Their causes of action for breach of contract and breach of the covenant of good faith and fair dealing were based on the theory that USLI had a contractual obligation to defend and indemnify them in the Lopez litigation. The remaining causes of action alleged in addition that USLI, through an agent, misled plaintiffs as to the coverage it would provide.

USLI demurred to the second amended complaint, primarily on the ground the policy did not cover Lopez’s claims for bodily injury or Labor Code violations.

The trial court sustained the demurrer to the Delgadillo and Cortes action against USLI without leave to amend. It took judicial notice of the verdict form for the negligence claim in the Lopez litigation, which indicated Lopez sustained his injury during the course of his employment by Delgadillo and Cortes. Because the policy explicitly excluded coverage for bodily injury sustained by an employee in the course of employment, the court ruled, plaintiffs could not state a cause of action for breach of contract against USLI.

The court of appeal affirmed the dismissal in the unpublished case of Delgadillo v. United States Liability Ins. Co..

The trial court correctly concluded the policy provided no potential for coverage, and therefore USLI had no duty to defend plaintiffs in the Lopez litigation and there was no breach of contract. Plaintiffs suggest no theory upon which their remaining causes of action for breach of the implied covenant of good faith and fair dealing, fraud, deceit, and intentional infliction of emotional distress may be maintained in the absence of a duty to defend.