Category: Daily News

Taylor Capito received treatment in the emergency room of San Jose Healthcare System LP dba Regional Medical Center San Jose on two occasions. Regional is a major hospital in San Jose with an emergency room.

Capito filed a class action complaint against Regional under the Consumer Legal Remedies Act (CLRA), challenging Regional’s “unfair, deceptive, and unlawful practice of charging [an EMS fee] without any notification of its intention to charge a prospective emergency room patient such a Fee for the patient’s emergency room visit.”

Regional demurred and moved to strike the class allegations. In doing so, it briefed the legislative history behind the Payers’ Bill of Rights (Health & Saf. Code, § 1339.50 et seq.) and other federal and state regulations governing its pricing disclosures.The trial court sustained the demurrer and dismissed the case.

And the Court of Appeal affirmed the dismissal in the unpublished case of Capito v. San Jose Healthcare System, LP – H049022, – H049646 (April 2023).

However, there are conflicting opinions on this issue in other California courts. In another case, Joshua Naranjo filed a class action lawsuit against the Doctors Medical Center of Modesto Inc., seeking similar relief, however his case resulted in a conflicting opinion. In Naranjo v. Doctors Medical Center of Modesto (2023) 90 Cal.App.5th 1193, a published decision of the Fifth Appellate District in which the court had ruled that the hospital was required to further disclose the EMS fee prior to treating ER patients.

The California Supreme Court agreed to hear the Capito case, and it resolved the conflicting decisions in the case of Capito v. San Jose Healthcare System, LP -S280018 (December 2024)

The question here is whether hospitals have a duty, beyond what is required by the relevant statutory and regulatory scheme, to notify emergency room patients that they will be charged EMS fees.

“Hospitals do not have a duty under the UCL or CLRA, beyond their obligations under the relevant statutory and regulatory scheme, to disclose EMS fees prior to treating emergency room patients. Requiring such disclosure would alter the careful balance of competing interests, including price transparency and provision of emergency care without regard to cost, reflected in the multifaceted scheme developed by state and federal authorities. Capito has not sufficiently alleged facts showing that the lack of such disclosure is “unlawful, unfair or fraudulent” on any theory she presents under the UCL or CLRA.”

Accordingly, the California Supreme Court affirmed the Court of Appeal’s judgment in favor of Regional.

Harold Winston is “an African-American male” with “over 30 years of service” with the County of Los Angeles. Winston worked in the Department of Treasurer and Tax Collector as the supervising deputy public conservator administrator in the public administration branch.

Winston sued his employer L.A. County alleging race-based discrimination, retaliation, and failure to maintain a discrimination free environment under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and whistleblower retaliation in violation of Labor Code section 1102.5.

While Winston’s case was pending, Labor Code section 1102.5 was amended, effective January 1, 2021, to add a provision – subdivision (j) – authorizing courts to award reasonable attorney fees to whistleblower plaintiffs who prevail against their employer under section 1102.5.

Trial began on November 17, 2021. On November 24, 2021, the jury returned a verdict on the three causes of action submitted to them. It found in favor of L.A. County and against Winston on the causes of action for retaliation under FEHA and failure to prevent discrimination/ harassment under FEHA. The jury found in Winston’s favor on his cause of action for whistleblower retaliation under section 1102.5. It awarded him damages totaling $257,000.

After the jury found in Winston’s favor on his retaliation claim under section 1102.5, Winston filed a motion for attorney fees and requested $1,854,465 as the prevailing party based on section 1102.5’s recently enacted subdivision (j).

The trial court denied the motion, ruling that the fee provision does not apply to Winston’s case because it was not in effect in 2019 when the complaint was filed and because it found no legislative intent supporting retroactive application.

The Court of Appeal reversed in the published case of Winston v. County of Los Angeles – B323392 (December 2024).

On appeal, Winston argued section 1102.5, subdivision (j) applies to his case “because [his] case was still in action at the time the provision became effective.” He contends the trial court erroneously denied his motion based on “no legislative intent demonstrating retroactive application of [the statute].” The Court of Appeal agreed with Winston and reversed.

The law invoked here, section 1102.5, is “California’s general whistleblower statute.” When Winston filed this case, section 1102.5 did not include a one-way fee-shifting provision “authoriz[ing] an award of attorney fees to a worker who prevails on a claim of retaliation for blowing the whistle on workplace legal violations.” The California Legislature amended the law by passing Assembly Bill No. 1947, which allows discretionary recovery of reasonable attorney fees to a prevailing whistleblower plaintiff.

Effective January 1, 2021, section 1102.5, subdivision (j) provides: “The court is authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions.” (§ 1102.5, subd. (j).)

Under California law, the general rule is that absent a clear, contrary indication of legislative intent, courts interpret statutes to apply prospectively. However, “the California Supreme Court and many, many Courts of Appeal have treated legislation affecting the recovery of costs, including attorney fees, as addressing a ‘procedural’ matter that is ‘prospective’ in character and thus not at odds with the general presumption against retroactivity.” (USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197, 217-218)

“Neither party points to a California decision directly addressing the issue of whether section 1102.5, subdivision (j) applies to cases pending at the amendment’s effective date and we have found none.”

“We conclude the statute authorizes an award of attorney fees to Winston because his action was pending when section 1102.5, subdivision (j), became effective. For that reason, we reverse.”

McKinsey & Company Inc., a global management consulting firm based in New York, has agreed to pay $650 million to resolve a criminal and civil investigation into the firm’s consulting work with opioids manufacturer Purdue Pharma L.P. The resolution pertains to McKinsey’s advice to Purdue concerning the sales and marketing of Purdue’s extended-release opioid drug, OxyContin, including a 2013 engagement in which McKinsey advised on steps to “turbocharge” sales of OxyContin.

This resolution marks the first time a management consulting firm has been held criminally responsible for advice resulting in the commission of a crime by a client and reflects the Justice Department’s ongoing efforts to hold actors accountable for their roles in the opioid crisis. The resolution is also the largest civil recovery for such conduct.

Additionally, a former McKinsey senior partner who worked on Purdue matters has been charged with obstruction of justice in federal court in Abingdon, Virginia. Martin E. Elling, 60, a U.S. citizen currently residing in Bangkok, Thailand, has been charged with one count of knowingly destroying records, documents and tangible objects with the intent to impede, obstruct and influence the investigation and proper administration of a matter within the jurisdiction of the Justice Department. Elling has agreed to plead guilty and is expected to appear in federal court in Abingdon to enter his plea and for sentencing at later dates.

As part of the government’s resolution with McKinsey, the company has entered into a five-year deferred prosecution agreement (DPA) in connection with a criminal Information filed in U.S. District Court for the Western District of Virginia against McKinsey’s U.S. subsidiary (McKinsey & Company Inc. United States. The information charges McKinsey U.S. with one felony count of knowingly destroying records, documents and tangible objects with the intent to impede, obstruct, and influence the investigation and proper administration of a matter within the jurisdiction of the Justice Department; and one misdemeanor count of knowingly and intentionally conspiring with Purdue and others to aid and abet the misbranding of prescription drugs, held for sale after shipment in interstate commerce, without valid prescriptions.

McKinsey has agreed to pay a penalty of over $231 million, a forfeiture amount of over $93 million (reflecting all money it was paid by Purdue from 2004 to 2019) and a payment of $2 million to the Virginia Medicaid Fraud Control Unit to resolve the criminal allegations. McKinsey also has entered into a civil settlement agreement in which it will pay over $323 million to resolve its liability under the False Claims Act for allegedly providing advice to Purdue Pharma L.P. that caused the submission of false and fraudulent claims to federal healthcare programs for medically unnecessary prescriptions of OxyContin, as well as allegedly failing to disclose to the U.S. Food and Drug Administration (FDA) conflicts of interest arising from McKinsey US’s concurrent work for Purdue and the FDA. This brings the total payments under the global resolution to $650 million.

Today’s filing includes a 71-page Agreed Statement of Facts, which provides a detailed account of McKinsey’s work with Purdue relating to OxyContin. As part of the resolution, McKinsey has agreed to implement a significant compliance program, including a system of policies and procedures designed to identify and assess high-risk client engagements. As part of this compliance program, McKinsey will implement new document retention procedures and training for all partners, officers and employees who provide or implement advice to clients. This compliance program is in addition to the provisions negotiated between McKinsey and the Department in a concurrent resolution with McKinsey & Company Africa that was announced on Thursday, Dec. 5.

McKinsey has also agreed that it will not do any work related to the marketing, sale, promotion or distribution of controlled substances during the five-year term of the DPA. The resolution requires McKinsey’s Managing Partner to certify, on an annual basis, the firm’s compliance with its obligations under the DPA and federal law.

“For the first time in history, the Justice Department is holding a management consulting firm and one of its senior executives criminally responsible for the sales and marketing advice it gave resulting in the commission of crime by a client,” said U.S. Attorney Christopher R. Kavanaugh for the Western District of Virginia. “This ground-breaking resolution demonstrates the Justice Department’s ongoing commitment to hold accountable those companies and individuals who profited from our Nation’s opioid crisis.”

According to the California Medical Board records, Kevin Tien Do M.D.was born in Saigon, Vietnam and came to the United States in 1982, when he was 16 years old. He graduated from USC Medical School in 1991 and completed his residency in Physical Medicine and Rehabilitation at UCLA on June 30, 1995.

After about eight years following completion of his UCLA Residency, Dr. Do was convicted, on on August 15, 2003, following his plea of guilty, of violating Title 18, United States Code, sections 2 and 1347 (aiding and abetting health care fraud) in the United States District Court for the Eastern District of California, Case Number 2:02CR00338-01, entitled The United States of America v. Kevin Tien Do,

He was sentenced to 12 months in federal prison, commencing October 15, 2003, and ordered to pay an assessment of $100 and restitution of $366,031.24

From April of 1997 through December 31, 1998, he aided and abetted a billing company named “Medi-Syn” in a scheme to defraud Medi-Cal. He permitted Medi-Syn to use hisr Medi-Cal provider number to submit claims requesting payment for services purportedly rendered by him which he did not provide and which were never provided by anyone else. Do Medi-Syn opened a joint account under the name “Premier Health Providers Network” into which the Medi-Cal checks were deposited. Do provided 80 percent of these funds to Medi-Syn and kept 20 percent for himself. As a result of the scheme, Medi-Cal was defrauded out of $366,031.24.

In order to obtain leniency in the 2003 case against him, Do agreed to act as an undercover operative and to cooperate with the FBI in its investigation of Edgemont Hospital a psychiatric hospital in Los Angeles, and in a third investigation regarding podiatrist Gary Feldman and the West Pico Medical Clinic where Do worked. He participated in 43 undercover operations from December of 1998 through May of 1999. He also provided additional assistance in 2000. Respondent’s cooperation led to the conviction of Dr. Feldman.

Do began serving his federal prison sentence in the 2003 case on October 15, 2003, and was officially released from custody on October 13, 2004. He remained on federal probation until October of 2007.By 2004, Do had paid in full the $366,03 1.24 restitution ordered by the criminal court.

The Physician’s and Surgeon’ s Certificate No. G 76640 issued to Kevin Tien Do was revoked in late 2005 after an Accusation was filed against him by the California Medical Board. However, the revocation was stayed and he was placed on probation for ten years under several terms and conditions.

On October 26, 2016 the Medical Board concluded that Dr. Do had “completed probation in Case No. 06-2002-136106, is entitled to full restoration of the Physician’s and Surgeon’s Certificate.” It was therefore ordered that his medical license “be fully restored to renewed/current status and free of probation requirements, effective September 22, 2016.”

Now, more than two decades after his 2003 conviction,,Kevin Tien Do, M.D., who is now 59 years old and lives in Pasadena, worked for an Inland Empire medical company, and has now agreed to plead guilty – in new case – to conspiring to defraud California’s workers’ compensation fund of millions of dollars by continuing to work on workers’ compensation matters after being suspended due to a prior health care fraud conviction. He agreed to plead guilty to one count of conspiracy to commit mail fraud and one count of subscribing to a false tax return. .

Beginning in 2016, Do began to work for Liberty Medical Group Inc., a Rancho Cucamonga-based medical company, for which he would draft SIBTF-related medical reports that Liberty would then bill to the California SIBTF program. In October 2018, California suspended Do from participating in California’s workers’ compensation program, which included the SIBTF, because he had previously been convicted of federal health care fraud in 2003. Despite his suspension, Do continued to work for Liberty on SIBTF-related workers’ compensation matters.

To conceal that Do was unlawfully continuing to participate in the workers’ compensation SIBTF program after his suspension, Liberty’s owner came up with a plan. That plan was that Do would continue to author the SIBTF-related reports, which Liberty would then continue to mail to the California SIBTF for payment. rather than listing Do’s name on the billing forms and the attached medical reports mailed to the California SIBTF, like they had had done before Do’s suspension, Liberty instead fraudulently listed other doctors’ names on the billing forms and attached medical reports, even though Do had drafted and compiled the reports.

Do admitted that Liberty was paid more than $3 million by California SIBTF for such reports that Liberty mailed to the California SIBTF for payment after Do’s October 2018 suspension.

Do’s plea agreement also details that Liberty’s owner edited Do’s medical reports, even though that co-conspirator was not a doctor or other licensed medical professional.

Under California law, shareholders/owners of a medical corporation must be licensed in the practice of medicine or other related medical fields, such as a psychologist, registered nurse, or licensed physician assistant. In his plea agreement, Do admitted that real owner of Liberty and Do’s co-conspirator was another person who was not a doctor or other medical professional, but rather, was a California attorney then employed as a prosecutor for the Orange County District Attorney’s Office, and who later became an Orange County Superior Court judge during the conspiracy.

According to the Orange County Register, the Orange County Superior Court Judge named in the plea agreement is Israel Claustro, Claustro has served as a Senior Deputy District Attorney and an Assistant Head of Court at the Orange County District Attorney’s Office since 2020, where he has served in several roles since 2002. He served as a Law Clerk at the Orange County District Attorney’s Office from 2001 to 2002. Claustro earned a Juris Doctor degree from the Western State College of Law.

And MSN reports that the plea agreement with Do refers to the judge only as “co-conspirator #1,” but an investigation by the Southern California News Group has identified the jurist as Israel Claustro, who was appointed to the bench in 2022..

A reporter’s request for comment from Claustro was relayed to him through Orange County Superior Court officials. In response, court spokesperson Kostas Kalaitzidis said, “The court cannot discuss any case pending before any court, as ethical rules prohibit any such discussion.”

Officials with the U.S. Attorney’s Office declined to comment. Additionally, the state Commission on Judicial Performance would not disclose whether it is investigating Claustro,

That true owner who was Do’s co-conspirator not only was a signatory on Liberty’s bank account, but also issued and signed Liberty’s checks to Do and others. The plea agreement specifies that much of the more than $3 million that the SIBTF paid Liberty during the years following Do’s suspension then flowed to another company controlled by Liberty’s owner and his wife, which totaled to more than $1.5 million.

Do also admitted that he failed to accurately report to the IRS all the money he had been paid by Liberty. Do admitted that on his 2021 tax return, he failed to report approximately $66,227 of the income that Liberty paid him.

Once Do enters his guilty plea, he will face a statutory maximum sentence of 20 years in federal prison for the mail fraud count and up to three years in federal prison for the tax fraud count.

The FBI, IRS Criminal Investigation, and the California Department of Insurance are investigating this matter. Assistant United States Attorneys Charles E. Pell of the Orange County Office and Ryan J. Waters of the Asset Forfeiture and Recovery Section are prosecuting the case.

CEO of one of California’s largest vocational return to work counseling centers, Hazel Ortega, 53, of La Habra, appeared in court after being charged with 23 felony counts including insurance fraud, theft, and forgery.

A Department of Insurance investigation found Ortega allegedly defrauded at least four insurance companies by forging documents on behalf of unknowing injured workers.

The Department’s investigation began after receiving multiple referrals from insurance companies alleging Ortega, owner of Ortega Counseling Center, a motivational speaker, and author of “From Bounced Checks to Private Jets,” was referring injured workers to schools which were not approved and not eligible to receive the voucher funds through the Supplemental Job Displacement Benefit (SJDB) program, which provides an allowance of $6,000 to $10,000 for educational retraining or skill enhancement for qualifying injured workers to provide them a marketable skill to re-enter the workforce after a workplace injury. This benefit is provided as a voucher that can be used at state-approved or accredited schools.

The Department of Insurance is urging any injured workers who believe they may have been victimized by Ortega or the Ortega Counseling Center to contact Detective Kuhlman or Sergeant Jimenez at the Department of Insurance by phone at (909) 919-2200.

Through the course of the investigation, detectives located and interviewed injured workers who had SJDB and Vocational Return to Work counseling invoices submitted to insurance companies by Ortega and discovered Ortega was pressuring and coercing injured workers to attend these unapproved schools and not providing them with any other additional choices.

Ortega also submitted forms to insurance companies on the injured workers’ behalf which they had not seen or reviewed. Multiple injured workers were shown documents submitted on their behalf which they had never seen and stated their signature had been forged. In one instance, detectives interviewed an injured worker for whom Ortega submitted an invoice to an insurance company alleging she provided nearly five hours of counseling services. When the injured worker was contacted, they confirmed they had never heard of Ortega nor met with her for counseling services.

Ortega was arraigned and charged previously in Los Angeles County for her participation in another nearly $1 million-dollar insurance fraud scheme. It is alleged Ortega and other vocational counselors received nearly $500,000 in illegal kick back payments for referring students to a fraudulent school in the Los Angeles area.

This case is being prosecuted by the Los Angeles County District Attorney’s Office.