Tag: 2018 News

A Brea physician, who is being prosecuted in a baby’s death and for being part of an alleged $100 million workers compensation fraud scam, recently had his medical license restricted pending the outcome of criminal proceedings filed in Orange County.

The interim suspension order agreed to by Dr. Andrew Robert Jarminski, his attorney Peter R. Osinoff and counsel for the Medical Board of California went into effect on Dec. 22.

Jaminski’s legal problems date back to criminal proceedings commenced in 2014 by an Orange County grand jury indictment of Kareem Ahmed of Landmark Medical Management in Ontario and 15 people including Jarminski.

The OCWeekly recent case summary notes that the original indictment specifically cast Ahmed as the ringleader, accusing him of: hiring pharmacists to produce compounded transdermal creams and  paying kickbacks to several physicians and chiropractors, including Dr. Jarminski, for prescribing the cream to their workers’ compensation patients.

Ahmed’s attorneys managed to get most of the counts against their client tossed in March 2016. But the OCDA refiled charges against Ahmed and others that pushed the number of defendants up to 21 people and the alleged fraud ballooned to $100 million. Hearings in the case are set for Feb. 9 and 26 in Orange County Superior Court. Jarminski, had offices in Long Beach and Lawndale when he was first accused of having received $1.9 million in Landmark kickbacks.

As a result of events alleged in the OCDA criminal prosecution, the California Medical Board issued an Accusation against Jarminski in June, 2017 seeking to revoke his license. They claim he commenced treating Priscilla Lujan, an injured worker, in 2011. During the course of her treatment she gave birth to a child who was breastfeeding. The child died after ingesting residue from the compounded transdermal medication he prescribed for her. The ODCA pursued manslaughter charges against Jarminski, and others, for this death.

Attorneys for the defendants have vehemently denied the charges against them. As for Jarminski’s medical license, his lawyers argued that staying a suspension is appropriate because he is presumed innocent until proven guilty, and if he is convicted his license will be revoked by the medical board anyway.

Late last month, Administrative Law Judge Susan L. Formaker agreed that the public can be protected through the restrictions of the interim suspension order, which stipulates that Jarminski cannot dispense or prescribe non-FDA approved compounded medications before the matters before the criminal court and medical board are resolved.

The case of Saul Zuniga involves another challenge to the constitutionality of certain provisions of the IMR process. He asserts that the anonymity of the IMR reviewers violates his right to due process and that the IMR statute violates the guarantee of right to appellate review.

After successfully appealing an IMR determination and obtaining an order remanding the matter back to IMR for review by a different physician reviewer, Zuniga filed a discovery motion seeking the disclosure of the IMR reviewers’ identities. The Workers’ Compensation Judge ruled that he could not release the names of the IMR physicians pursuant to Labor Code section 4610.6(f).

Zuniga filed a petition for reconsideration, which was denied. He then filed a petition in the Court of Appeal arguing that the anonymity of the IMR reviewers violates due process and that the IMR statutes violate the guaranteed right to appellate review. The Court of Appeal rejected his constitutional challenge, and affirmed the WCAB in the unpublished case of Zuniga v WCAB.

Zuniga argued that it is a denial of due process for an IMR to refuse to disclose the identities of the reviewers when the decision of the first reviewer is reversed and the dispute is referred to a different reviewer in the organization. He claimed that without knowing the identities of the reviewers, an applicant is deprived of the opportunity to “dispute the findings of the second reviewer on the ground that they were made by the same reviewer whose opinion was reversed.”

The Court of Appeal responded by noting that under Article XIV, Section 4 of the California Constitution, the Legislature “is . . . expressly vested with plenary power unlimited by any provision of this Constitution, to create, and enforce a complete system of worker’s compensation by appropriate legislation.”

As the Court of Appeal held in Stevens, the due process clause of the California Constitution (Cal. Const., art. I, § 7, subd. (a)) does not limit the Legislature’s authority to create a workers’ compensation system. (Stevens, supra, 241 Cal.App.4th at pp. 1092-1093.) Section 4 therefore “supersedes the state Constitution’s due process clause with respect to legislation passed under the Legislature’s plenary powers over the workers’ compensation system.”

The Court also ruled that Zuniga’s federal due process claim fails as well. The Court of Appeal in Stevens  concluded that the IMR process, including the confidentiality requirement of section 4610.6, subdivision (f), does not violate the federal due process clause. (Stevens, supra, 241 Cal.App.4th at pp. 1096-1101; see also Ramirez, supra, 10 Cal.App.5th at pp. 227-229.)

The Court of Appeal in Stevens assumed that an IMR determination is state action and implicates a protected property interest, which are prerequisites to a federal due process claim. (Stevens, supra, 241 Cal.App.4th at pp. 1096-1098.) The court concluded that even so, Stevens’s due process claim failed because the IMR process “afford[s] ample process. ‘The core of due process is the right to notice and a meaningful opportunity to be heard.’”

When due process must be afforded, the amount of process required is determined by balancing the affected private interest, the risk of erroneous deprivation of this interest, the probable value, if any, of additional or substitute safeguards, and the government’s interest in the process.

On February 20, 2014, the owner of the Pacific Hospital of Long Beach, Michael D. Drobot, entered into a plea agreement in the case captioned United States v. Michael D. Drobot, pursuant to which he agreed to plead guilty to conspiracy and payment of kickbacks in connection with a federal health care program.

Pursuant to his plea agreement, Drobot agreed to forfeit all “right title, and interest” in assets “derived from or acquired as a result of, or used to facilitate the commission of, defendant’s illegal activities.” Drobot further agreed “[t]o the Court’s entry of an order of forfeiture at or before sentencing with respect to these assets and to the forfeiture of the assets.”

After a number of “sealed” documents were filed by the parties, and reviewed by the court on the topic of this forfeiture, Federal Judge Josephine L. Staton signed an Order on January 10, 2018 directing a personal money judgment of forfeiture in the amount of $10,000,000.00 in favor of the United States of America against defendant Michael D. Drobot.

The terms of the forfeiture require the payment of $300,000 in cash. In addition liens were imposed on in the favor of the United States Attorney’s Office (USAO) on all properties in Oregon owner by Drobot. He was then ordered to sell the Oregon properties and pay all net proceeds (gross proceeds less taxes, costs, and other normal and customary costs associated with the sale) to the USAO.

He was also ordered to sell his 1965 Aston Martin, 1958 Porsche, and 1971 Mercedes Benz, and pay the proceeds to the USAO.

This personal money judgment of forfeiture is part of the sentence imposed on defendant in this case. The Court retained jurisdiction to enforce this judgment.

But that is not all for Mr. Drobot.

A hearing to determine victim losses pursuant to 18 U.S.C. § 3664(d)(5) and to determine the final amount of restitution is scheduled for May 11, 2018 at 10:30 a.m. And the Court will determine his criminal sentence this week.

However, Drobot plead guilty early in the case, and agreed to “cooperate” with authorities. Conceptually, as a result of his cooperation, many successful prosecutions of well known physicians were successful. No doubt this will be taken into consideration.

Drobot has also filed letters from various supporters asking for leniency.

Attorney Donald G. Norris authored a support letter dated January 11. He handleled many of Mr. Drobot’s civil matters, both before and after the government investigation and prosecution in the case now before the Court, including the civil RICO case that was brought by State Compensation Insurance Fund before Judge Andrew Guilford. He argues that Drobot “already suffered considerable punishment” as a result of the many criminal and civil cases. He asks that “this Court not impose a sentence of imprisonment, and if one is imposed, a short term.”

A massive federal lawsuit aims to hold pharmaceutical companies responsible for contributing to the opioid crisis, and a federal judge is seeking a quick resolution.

More than 200 individual cases have been consolidated in a multi-district process being overseen by U.S. District Judge Dan A. Polster in Cleveland.,

The governments are suing over what they claim are false marketing practices by pharmaceutical companies that manufacture prescription painkillers, as well as claims that drug wholesalers brought more pills than needed into areas with high levels of addiction, knowing that the pills would be diverted for illegal use.

At an initial hearing on Tuesday, Judge Polster pushed for the pharmaceutical manufacturers and governments to settle the dispute quickly. Attorneys from across the country filled every corner of Polster’s courtroom at the federal courthouse in downtown Cleveland, with others either in an overflow room watching a video feed or listening on the phone.

According to the transcript of the hearing and news reports, he told more than 100 attorneys that the United States is at risk this year of seeing life expectancy go down for the third straight year, a statistic unmatched since the 1918 influenza pandemic, which killed at least 50 million people worldwide, including 550,000 in the United States.

But unlike that particularly deadly strain of flu virus, “this is 100 percent manmade,” Polster said. “I’m pretty ashamed that this has occurred while I’ve been around.”

“I don’t think anyone in the country is interested in a whole lot of finger pointing at this point, and I’m not either. People aren’t interested in depositions, and discovery,and trials. People aren’t interested in figuring out the answer to interesting legal questions like preemption and learned intermediary,or unraveling complicated conspiracy theories.”

Among other things, he said that “what I’m interested in doing is not just moving money around, because this is an ongoing crisis. What we’ve got to do is dramatically reduce the number of the pills that are out there and make sure that the pills that are out there are being used properly. … So that’s what I want to accomplish. And then we’ll deal with the money. We can deal with the money also and the treatment. I mean, that’s what — you know, we need a whole lot — some new systems in place, and we need some treatment.”

He acknowledged to those in the courtroom that his statements were likely not what they expected to hear in the first hearing but that he had given it a lot of thought prior to hearing. He wants to find a way to stop the flow of pills onto the street, while still ensuring that those who really need them can still acquire them.

Despite Polster’s call for a quick settlement, Young predicted that the litigation would involve months of discovery, test cases and monthly meetings before the judge. “We don’t need a lot of briefs and we don’t need trials.”

The California Labor Commissioner issued citations totaling $7,137,036 to the operator of six adult care facilities in Los Angeles for wage theft and other labor law violations.

Adat Shalom Board & Care, Inc. was ordered to pay underpaid wages and penalties to 149 former and current employees who provided care to elderly residents 24 hours a day, six days a week. For years, officials say the caregivers were paid less than $3 an hour for their work.

The Labor Commissioner’s Office opened its investigation last June after receiving a report of labor law violations. The investigation uncovered that from July 2014 to July 2017, the caregivers at the six facilities in West Hills were:

– Paid less than the minimum wage for each hour they worked.
– Not paid overtime for working 24-hour shifts, six days a week.
– Not relieved from their duties to take meal or rest breaks.
– Provided pay stubs that withheld key information such as hourly rate of pay and total number of hours worked.

The live-in caregivers were responsible for monitoring and caring for elderly residents and hospice patients, many of them suffering from Alzheimer’s or dementia. The caregivers were paid fixed amounts ranging from $1,500 to $1,800 per month, or $2.40 to $2.88 per hour.

The citations issued against Adat Shalom Board & Care include $2,272,343 for under payment of minimum wages, $1,871,990 in overtime wages, $128,196 for meal period violations, and $2,689,907 in liquidated damages.

When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest.

In addition to the money for the workers, $174,600 in civil penalties were levied for nonpayment of overtime and minimum wages, meal period violations as well as for failing to provide workers accurate itemized wage statements with their paychecks. The civil penalties collected will be transferred to the State’s General Fund, as required by law.