Category: Daily News

On August 17, 2015, Evelyn Rivera went to see a doctor at Kaiser Permanente Hospital becaus.e she had injured her left shoulder. She told the doctor her shoulder had begun hurting after stretching it four or five days earlier. In February 2016, she had surgery on her shoulder to repair a torn rotator cuff.

About a year after the initial appointment, Rivera submitted a workers’ compensation claim for an injury to the same shoulder. One doctor examined her on October 19, 2016, and another examined her in August .cling bin. The second doctor reviewed Rivera’s prior medical records and concluded he did not believe her injury was work related. Her workers’ compensation claim was later rejected, but the County of Riverside was billed for her visits to the two doctors.

In July 2018, the Riverside County District Attorney’s Office filed a complaint charging Rivera with two felony counts of insurance fraud under Insurance Code section 1871.4, subdivision (a)(1) (count 1) and Penal Code section 550, subdivision (a)(1) (count 2). Rivera was arraigned in Riverside County Superior Court on September 21, 2018, pled not guilty,

On March 15, 2019, at the Riverside County Superior Court preliminary hearing. Kurtis Lackman, a workers’ compensation investigator, testified about his investigation into Rivera’s case.

Lackman said he began his investigation after the district attorney’s office received a referral from the county, which had already undertaken an investigation. He interviewed the doctors who examined Rivera after she made her workers’ compensation claim. He also interviewed Rivera. His testimony supported the facts set out above. After his testimony, the judge determined “it does appear that the offenses that are currently charged in Counts 1 and 2 have been committed. There’s sufficient cause to believe the defendant guilty of those particular offenses, so I will order that she be held to answer to same.”

The preliminary hearing resulted in a finding of probable cause, thus the People filed an information with the same charges now in Riverside County Superior Court., and Rivera pled not guilty at her arraignment.

A settlement conference was held in October 2021, two and a half years later. Rivera asked the judge to reduce the charges to misdemeanors under section 17(b) and grant her misdemeanor diversion under Penal Code section 1001.95 (section 1001.95), avoiding the need for a trial.

Later Rivera filed a formal motion to reduce the charges to misdemeanors and grant diversion, provided Rivera first paid restitution of approximately $20,000. The prosecutor objected, arguing the court did not have authority under section 17(b) to reduce the charges to misdemeanors until Rivera had pled guilty or been convicted.

The judge agreed with the defense that under the “Williamson Rule” the prosecution could not charge Rivera under sectioAn 550(a)(1) because the more specific section 550(a)(6) governs. The court granted the motion and set aside count 2.

On December 15, 2022, Rivera paid $20,000 in restitution and Riverside County Superior Court Judge Taylor reduced count 1 to a misdemeanor under section 17(b) and granted diversion under section 1001.95, with conditions that she perform 20 hours of community service and attend a life skills class.

The People filed a petition for a writ of mandate seeking to vacate the order setting aside the section 550(a)(1) count and the order reducing the Insurance Code count to a misdemeanor.overturn the order reducing count 1 to a misdemeanor and the order setting aside count 2.

The Court of Appeal agreed with Rivera and the trial court that the People were required to prosecute this workers’ compensation fraud case under the more specific section 550(a)(6). It therefore denied the People’s petition for a writ of mandate as to that order in the unpublished case of People v Superior Court (Rivera) -E080532 (August 2023)

The People charged Rivera under section 550(a)(1), which states it is unlawful to “[k]nowingly present or cause to be presented any false or fraudulent claim for the payment of a loss or injury, including payment of a loss  or injury under a contract of insurance.” (Italics added.) The gravamen of the complaint and information was that Rivera knowingly presented a false claim for the payment of benefits available under the workers’ compensation law.

Rivera argues, and the Court of Appeal agreed, that the allegation against her also falls under section 550(a)(6), which makes it unlawful to “[k]nowingly make or cause to be made any false or fraudulent claim for payment of a health care benefit.” (Italics added.) Workers’ compensation benefits like funds paid to cover medical expenses are “health care benefits,” which means section 550(a)(6) applies specifically to her case.

The only differences between the two statutory provisions is that 550(a)(1) applies to payments for any losses or injuries and section 550(a)(6) applies to payments for health care benefits, a subset of the general category.

Rivera argued that the well established 1954 California “Williamson Rule” (In re Williamson, 43 Cal. 2d 651, 276 P.2d 593) justified the ruling of the trial court. The Williamson Rule is a legal doctrine in California criminal law that states that if a general statute includes the same conduct as a special statute, and thus conflicts with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.

The Court of Appeal concluded that “It follows that the Williamson rule applies, and we should infer the Legislature intended that conduct like Rivera’s be prosecuted exclusively under section 550(a)(6).” … “The trial judge was correct to set aside the section 550(a)(1) count, and we will therefore deny the People’s petition for a writ of mandate as to that order.”

After a two-month trial, this week a jury awarded former UC San Diego oncologist Dr. Kevin Murphy more than $39 million in his whistleblower claim against the University of San Diego.

According to the report by the San Diego Union-Tribune, the dispute between Murphy and UCSD began in the fall of 2015, when philanthropist Charles Kreutzkamp died of cancer and left $10 million to the university “for cancer research.” The university planned to use it as a general gift for its Moores Cancer Center. Murphy said the donor had intended to fund Murphy’s experimental brain stimulation treatment, known as PrTMS. He complained the school was attempting to divert the funds.

Eventually, the school steered the money to Murphy’s research. But he said school officials thwarted his attempts to set up clinical trials and ignored his official complaints about it. The school said Murphy violated policies, wrongly used donated funds to set up a research clinic off campus and enriched himself and his companies.

According to investigative reporting by non-profit Inewsource.com, the UC system launched the litigation battle in 2020 when it sued Murphy, alleging he committed fraud and enriched himself using the $10 million donation to the university meant for research. It claimed at least $6.9 million of that donation was gone but no research was ever performed.

Murphy countersued, claiming UCSD led a campaign against him when he spoke up about the university funds being directed away from their intended purpose.

Those two lawsuits were combined into a massive trial that ended this week with a $39 million verdict in favor of Dr. Murphy. The jury deliberated for fewer than eight hours before returning a verdict Wednesday afternoon.

In addition to ruling in favor of Murphy, the jury also found that the doctor had breached his duty of loyalty to UCSD and acted against its interests. The jury awarded about $67,000 in favor of the UC system, which covered money Murphy had earned outside the university that he had failed to turn over as required.

The UC system asked for more than $8 million in damages, including civil penalties for violations of the False Claims Act and years of Murphy’s salary paid to him while he was disloyal to the public institution. UCSD had also sued for damages against Murphy’s private medical clinic and medical software company, but the jury found that the companies did not owe any damages.

Murphy said he would use the funds to run the trials he had always intended to conduct using the $10 million donation to UCSD.

The ruling is the latest of several whistleblower cases his laywer, Mark T. Quigley at Greene Broillet & Wheeler, has won against the University of California. According to the firms website, .

In another high-profile whistleblower retaliation trial, Mr. Quigley says that he attained a $2 million verdict against the UC Regents and the former Dean of the UC Irvine School of Medicine. The plaintiff in that case, Mark Linskey, M.D., is a tenured full professor at the UC Irvine School of Medicine and the former Chair of the Department of Neurological Surgery. Mr. Quigley said he resolved the case for a total of $3 million in damages and also obtained a Court Order reinstating Dr. Linskey to the Department of Neurological Surgery and residency program.

In another case, Scheer vs UC Regents, (2022) 76 Cal App. 5th 904, a California State Appeals Court recently reinstated one of Mr. Quigley’s whistleblower retaliation cases which involves a top UCLA pathology doctor’s claims that he was fired in retaliation after raising concerns about workplace mismanagement. The plaintiff, Dr. Arnold Scheer, alleged in his 2017 lawsuit that the University of California Regents and two former supervisors fired him after he identified numerous issues and violations concerning patient safety, mismanagement, fraudulent conduct, sub-standard facility conditions, lost specimen samples, and more.

A Los Angeles County Superior Court judge dismissed all of Dr. Scheer’s claims at the summary judgment stage, but the three-judge panel unanimously revived the case that asserts three causes of action: violations of a state whistleblower protection law, Labor Code section 1102.5, a whistleblower law specifically protecting University of California employees, Government Code section 8547.10; and a health care worker whistleblower protection law, Health, and Safety Code section 1278.5.

An in another case, attorney Quigley achieved a $10 million settlement in Pedowitz v. UC Regents, a whistleblower-retaliation case. The Los Angeles Times reports that Robert Pedowitz, originally recruited to UCLA in 2009 to run the orthopedic surgery department, sued UCLA, the UC Regents, fellow surgeons, and senior university officials because they failed to act on his complaints about conflicts of interest. Pedowitz alleged that they later retaliated against him for speaking out.

According to the LA Times story, Pedowitz stated he became “concerned about colleagues who had financial ties to medical-device makers or other companies that could unduly influence their care of patients or taint important medical research.” Pedowitz raised concerns about the financial dealings of several doctors, including an orthopedic surgeon that testified at trial about receiving $250,000 in consulting fees in 2008 from device maker Medtronic. Pedowitz also took issue with physicians who included UCLA logos on personal websites without getting official permission.

After raising his concerns, however, Pedowitz said he was pressured to step down as department chairman in 2010. He accused the university of retaliation, stating he was denied patient referrals and prevented from participating in grants and other activities, LA Times reports

Michele Earley, Ashraf Gorgi, Hyun Sook Lee, Roman Hernandez Aguilar, and Jose Flores Campos were each applicants in a workers’ compensation proceeding. In each case one of the parties had filed a Petition for Reconsideration of a ruling issued in their case.

By statute, the WCAB must act upon such petitions within 60 days. To satisfy this requirement, the Board often grants petitions for purposes of further study without first deciding whether reconsideration is actually warranted. Later – sometimes many months after the petition for reconsideration was filed – the Board issues a decision on the merits affirming, reversing, or modifying the ruling at issue.

In each of these five cases, the Board issued a grant-for-study order. The Petitioners’ grant-for-study orders arose in different situations with different timelines. The cases are different but the Board’s orders were exactly the same. The uniform language of these orders reveals a standard form and not particularized analyses.

The Board explained its grant-for-study procedure. It generally tries to identify significant cases or those requiring en banc review, and cases involving complicated or novel issues. It was able to trace the history of this practice to the 1950’s; an earlier origin existed but is lost in time. The Board surmised the grant-for-study procedure “evolved naturally” from 1913 statutes that allowed the Industrial Accident Commission (a precursor to the Board) either to grant or to deny rehearing and thereafter to issue a decision after rehearing.

According to the results of a public records request that Petitioners served on the Board, as of November 2, 2021, there were 543 workers’ compensation cases awaiting a final decision in which the Board had issued a grant-for-study order between October 1, 2018 and October 1, 2021. The time between the filing of the grant-for-study orders and the Board’s final decisions ranged from five to 21 months.

The Court of Appeal issue a writ of mandate requiring the Board to cease its grant-for-study procedure and to comply with the statute when granting reconsideration in the published case of Earley v. Workers’ Comp. Appeals Bd. B318842 (August 2023).

Labor Code section 5908.5 requires the Board to explain its reasons for granting reconsideration and to identify the evidence supporting its decision. The Court simply said that the “statute is clear. The Board must obey it.”

At oral argument, the Board assured the Court of Appeal that it carefully reviews the cases in which it decides to issue a grant-for-study order. A careful review is not enough. Section 5908.5 requires the Board to go a step further and to explain in its order granting reconsideration why it made the decision to grant reconsideration based upon the evidence in the particular case.

However the Court of Appeal noted that “The Board’s grant-for-study orders in these cases fell short. These orders gave no reason for granting reconsideration other than a boilerplate statement that further study is necessary ‘based upon our initial review of the record.’ A rubber stamp could have authored these statements.“

“The Board does not claim that its standard grant-for-study order complies with section 5908.5. Rather, its defense of the grant-for-study procedure focuses on the long tenure of the procedure and the claimed impossibility of issuing a reasoned order in all cases. But a long-standing and incorrect procedure remains incorrect.”

“The Board must comply with section 5908.5 when it orders reconsideration. That is, the Board must state in detail the reasons for its decision and the evidence supporting it. Those reasons must be based on the grounds identified in section 5903. The Board need not, however, issue a final order within 60 days. The review necessary to support a decision to grant a petition for reconsideration within 60 days does not involve the same burden as the preparation of a final ruling. The Board must engage in the analysis necessary to permit a reasoned decision as to whether reconsideration is warranted based upon the factors identified in section 5903 and the evidence in the particular case. The Board then can decide whether to affirm, to modify, or to vacate the order at issue after further consideration and a more thorough review of the record.”

Petitioners met the statutory requirements for an award of attorney fees under Code of Civil Procedure section 1021.5. However the Court of Appeal reduced the requested $221,554.50 in fees by one half because Petitioners’ success was only partial.

“Petitioners successfully challenged the lawfulness of the Board’s current grant-for-study practice, resulting in an order that will require the Board to comply with section 5908.5 when it grants reconsideration. They did not achieve their aim of requiring the Board to issue final rulings on petitions for reconsideration within 60 days.” The Court of Appeal also awarded Petitioners their out-of-pocket appellate costs, which they identify as $7,891.63.

A new California Workers’ Compensation Institute (CWCI) review of the Independent Medical Review (IMR) process shows that after hitting an all-time low high in 2022, the number of IMR decision letters rose 4.1% in the first six months of 2023 compared to the first half of 2022. However the number of letters and individual decisions remained below pre-pandemic levels.

CWCI’s review encompassed more than 1.3 million IMR decision letters issued from 2015 through June 2023 in response to applications submitted to the state after a Utilization Review (UR) physician modified or denied a workers’ comp medical service request.

As in prior reviews, Institute analysts tallied the number of letters issued each quarter based on the letter date; determined the distribution and uphold rates by medical service category for the disputed treatment requests, as well as the distribution and outcomes of pharmaceutical IMRs by major therapeutic drug group; and calculated the percentage of IMRs associated with high-volume medical providers.

The data show that total IMR volume trended down for four consecutive years (2019 through 2022), as the number of work injury claims fell during the pandemic and pharmaceutical disputes declined after the state adopted the evidence-based Medical Treatment Utilization Schedule (MTUS) Prescription Drug Formulary and Pain Management and Opioid Guidelines.

After climbing to a record 184,735 letters in 2018, IMR letter volume declined 31.1% over the next four years, falling to 127,215 letters in 2022. While IMR decisions were down across all medical service categories, the addition of the Pain Management and Opioid Guidelines into the MTUS in late 2017 and the implementation of the MTUS Formulary in January 2018 had a huge effect as prescription drug disputes fell from 47.3% of all IMRs in 2017 to 33.3% in 2022, while the initial data from 2023 show prescription drug disputes fell to 32.6% of the IMRs in of the first half of this year.

From 2018 through June of this year, opioids’ share of the pharmaceutical IMRs has dropped from nearly a third to less than a quarter of all prescription drug IMRs. With prescription drugs representing a smaller share of the IMR disputes, there has been a shift in the distribution of services submitted for IMR since 2018, with the biggest percentage increases noted in physical therapy, which jumped from 10.3% to 13.4% of the IMRs; injections, which increased from 9.0% to 12.1%; and durable medical equipment, prosthetics, orthotics and supplies (DMEPOS), which rose from 7.1% to 8.9% of the IMRs over the past 5-1/2 years.

As in previous reviews, the latest data show that a small number of physicians continue to drive much of the IMR activity, with the top 1% of requesting physicians (80 doctors) accounting for 40.3% of the disputed service requests that underwent IMR in the 12 months ending on June 30 of this year. The top 10 individual physicians alone accounted for 11.6% of the disputed requests, and notably, 9 of the 10 individual providers with the highest number of IMR requests a year earlier were still on the top 10 list in the latest review.

IMR outcomes remained fairly stable, with IMR physicians upholding UR doctors’ modifications or denials 89.2% of the time in the first half of 2023 versus 91.1% of the time in 2022. The 2023 uphold rates by type of service request ranged from 75.7% for evaluation/management services to 92.9% for acupuncture.

CWCI members and subscribers will find a more detailed summary of IMR experience through June 2023 in Bulletin 23-11 at www.cwci.org, and Institute members can also access updated IMR slides under the Research tab.

Nursing turnover continues to be a substantial challenge for healthcare organizations as the nursing shortage remains high nationwide, and in California, with no particular solution on the horizon.

A study from Nursing Solutions Inc. (NSI) showed that actual reported hospital and staff RN turnover increased from 18 percent in fiscal year 2020 to 27 percent in fiscal year 2021; the same March 2022 study reported that the workforce lost about 2.5 percent of RNs in 2021. In the latest NSI report (March 2023), turnover reduced to 23 percent in fiscal year 2022 but still remains elevated compared with prepandemic levels.

A Health Affairs study published in April 2022 found that the RN workforce fell by about 100,000 by the end of 2021, which is a “far greater drop than ever observed over the past four decades.” This decline was particularly pronounced among midtenure nurses (aged 35 to 49).

Career satisfaction, intention to leave jobs, and mental health and wellbeing issues among registered nurses have gotten significantly worse since the midst of the COVID-19 pandemic, according to the AMN Healthcare 2023 Survey of Registered Nurses.

The AMN Healthcare 2023 Survey of Registered Nurses, based on responses from more than 18,000 nurses in January 2023, found that career satisfaction dropped by 10 percentage points since the middle of the pandemic in 2021. In addition, the likelihood of encouraging others to become a nurse declined 14 points since 2021.

So this data begs the question about possible solutions.

In 2022, the US Department of Labor budgeted $80 million to encourage not-for-profit organizations, educational institutions, and tribal organizations to apply for grants of up to $6 million each to train current and former nurses to become nursing educators and frontline healthcare workers to train for nursing careers.

At the local level, CalMatters reports that the California Legislature is looking at several ideas to address the nursing shortage by bringing more early-career nurses into the field. But so far, the groups with most to gain – or lose – are at odds over how to solve the staffing problems afflicting California’s health care workforce.

Labor organizations and hospitals want nursing schools to prioritize certain applicants for admission, such as people who already have experience in the industry. But the schools say that won’t help them graduate more nurses. They need more faculty and more hands-on training opportunities to increase class sizes.

Hospitals and unions say they don’t have much time to waste. Estimates show California faces a shortage of about 36,000 licensed nurses, according to the UC San Francisco Health Workforce Research Center on Long-Term Care.

Labor advocates say the nursing shortage creates a vicious cycle. The nurses on shift wind up doing more work. They get burned out and flee the industry, worsening the problem.

Service Employees International Union (SEIU) and the United Nurses Associations of California/Union of Health Care Professionals turned their attention to the state’s community college system, where graduates can earn degrees to become nursing assistants, licensed vocational nurses or registered nurses. Both groups say community colleges offer the most affordable and efficient way to earn a nursing degree.

But community college and some university nursing school leaders contend they cannot boost the number of graduates. Nursing programs are full, they say, and the proposals do nothing to expand the number of admission slots.

About 14,000 new students enrolled in nursing programs during the 2020-21 school year, according to the Board of Registered Nursing’s annual school report. That’s about 1,000 fewer students than the previous two years due to smaller class sizes, but schools across the state received more than 55,000 applications, a 10-year record.

United Nurses Associations of California/United Health Care Professionals lobbied for a $300 million investment over five years to double the state’s nursing school capacity. It was included in the state budget Gov. Gavin Newsom signed earlier this summer. The details of how the money will be spent have not been decided.