Author: JGL Law

Successfully obtained a settlement on behalf of 13 children who had been sexually abused by a teacher’s aide at Sylvania Woods Elementary School in Prince George’s County.

US Department of Justice Files Complaint Against Surgeon in JGL Whistleblower Case

Claims Surgeon Received Kickbacks, Performed Unnecessary

Spinal Surgeries, Resulting in Patient Harm

Last month, we reported here that we represent two surgeons who stepped forward as whistleblowers by filing  a lawsuit against Sanford Health in South Dakota and Sanford neurosurgeon Wilson Asfora, M.D. Sanford Health recently settled its portion of the lawsuit for more than $20 million. The lawsuit alleged that Sanford Health had failed to take appropriate corrective action to prevent illegal kickbacks and unnecessary spine surgeries performed by spinal surgeon Wilson Asfora. The case received widespread local and national media attention.

With the hospital having settled and entered into a Corporate Integrity Agreement requiring continued monitoring by the federal government, on November 13, the latest development in this case emerged when the US Department of Justice filed a detailed 83-page  complaint  against remaining defendants, Dr. Asfora and his physician-owned distributorship, Medical Designs.

The Justice Department’s complaint claims that Dr. Asfora performed medically unnecessary spinal surgeries on Medicare and Medicaid patients at Sanford Health in order to profit from the devices he manufactured and used in those surgeries. Dr. Asfora’s activities violated federal anti-kickback laws, the complaint alleges, and as a result of some of those surgeries, patients were paralyzed or were forced to endure surgeries on the wrong body site.

JGL’s Veronica Nannis and Jay Holland proudly represent the whistleblower surgeons who initially brought this case to the federal government in 2016 after countless efforts to correct the issue internally failed. “The allegations in this case are incredibly serious, and we are grateful to the government for stepping into this case to partner with us,” said Ms. Nannis.

While the hospital settled its portion of the case, the federal government, alongside Nannis, Holland and their clients, continue to pursue the civil case against the doctor and his companies. For  media coverage of the Justice Department’s filing, see this article from the Sioux Falls Argus Leader.

Earlier this year, the hospital announced that it was suspending the purchase of devices sold by Dr. Asfora’s device companies. It has since announced the termination of Dr. Asfora from the hospital system.

Bethesda Magazine surveyed attorneys who practice in Montgomery County asking them to name the attorneys they would recommend in 25 practice areas.

8 JGL attorneys were included in the resulting “Top Attorney” listings:

Family Law/Divorce

David Bulitt

Jeffrey Greenblatt

Anne Grover

Lindsay Parvis

Trusts & Estates

Paul Riekhof

Appellate

Timothy Maloney

Business/Corporate

Jerry D. Miller

Employment Law

Jay P. Holland

For the complete article, visit www.bethesdamagazine.com and click on “Digital Edition” (requires subscription).

1.       What made you become a lawyer?

My college professor was a personal injury lawyer and taught a course called Legal Aspects of Medicine.  He soon became a mentor.  I then was applying to Medical School but my wife got pregnant which changed my career path as Medicine would take 12 + years and Law took only 3 years. Hence, I chose law. 

2.       What will be the biggest challenge for the generation behind you?

Billable hours.  Most lawyers earn money on how they bill.  With the advancement of technology, we work much faster and efficiently, as a result the new generation takes less time to write a pleading. The negative part of this is that I think the new generation is less prepared for litigation as they are doing virtually everything on-line and miss important legal concepts and facts that are on paper.

3.       What is the most interesting case you’ve ever had?

I had represented a prominent football coach. That’s all I can reveal.

4.       How do you measure success?

What others say about you when you are not around, especially professionally is extremely important. I measure success through one’s reputation.

5.       What do you look forward to when you go to work every day?

I look forward to leaving the office. Jokes aside, I look forward to a productive day and then getting back to my kids.

GREENBELT, MD – October 28, 2019 – A whistleblower case alleging kickbacks and unnecessary spine surgeries has been settled by Sanford Health in South Dakota for $20.25 million. The False Claims Act settlement is believed to be one of the largest in the district.

Two Sanford surgeons filed the complaint under seal in August 2016 under the whistleblower process (qui tam) in the False Claims Act. It alleged that the lucrative Sanford neurosurgeon, Dr. Asfora, was selling medical devices to Sanford for surgeries he performed, resulting in an unlawful economic incentive for him to use, and overuse, the devices on unwitting patients. The complaint alleged that this kickback scheme resulted in multi-level, medically unnecessary spinal fusion surgeries to scores of Medicare and Medicaid patients.

The complaint recounted the numerous efforts made over many years by the physician whistleblowers and others to implore Sanford to take appropriate actions to stop the alleged unlawful kickbacks and the resulting unnecessary spinal surgeries. As alleged, Sanford repeatedly failed to take corrective measures, and the physicians had no choice but to bring their grave concerns to the federal government “as a last resort” by filing the whistleblower complaint and fully cooperating with the Government’s investigation.

Their efforts have now successfully met their goal of protecting patients from these unnecessary and harmful surgeries. The case received widespread local and national attention after the Government intervened and the court unsealed the record in June 2019. In July, the hospital announced that it was suspending the purchase of devices sold by Dr. Asfora’s device companies. It has since announced the termination of Dr. Asfora from the hospital system.

The Department of Justice announced today that Sanford settled its share of the litigation for $20.25 million. In addition, the government entered into a Corporate Integrity Agreement (CIA) with Sanford, requiring that “Sanford maintain a compliance program, implement a risk assessment program, and hire an Independent Review Organization to review Medicare and Medicaid claims at Sanford Medical Center.” Moreover, the CIA also requires compliance-related certifications from the board of directors and key executives at Sanford, increasing individual accountability. The case against Dr. Asfora and his company, Medical Designs, continues to be prosecuted.

JGL’s Veronica Nannis and Jay Holland are honored to represent the physician relators. They are also thankful for the assistance of local counsel, Robert Anderson, and for the comprehensive investigation performed by the experienced government attorneys dedicated to this case, particularly DOJ Trial Attorney Chris Terranova and Assistant U.S. Attorney Meghan Roche from the U.S. Attorney’s Office in Sioux Falls. “The government’s commitment to investigating and wholeheartedly pursuing this case underscores its keen desire to protect patients, root out fraud and protect taxpayer dollars,” said Holland.

Greenbelt, Maryland based Joseph, Greenwald & Laake filed the lawsuit in August 2016. The case caption is US ex rel Bechtold v. Sanford Health, et al., Case 4:16-cv-04115-LLP (S.D.).

Jay Holland is a partner at Joseph, Greenwald & Laake, and is Chair of the Firm’s Labor, Employment and Qui Tam practice. He is an employment and a whistleblower attorney with a nationwide qui tam practice. His False Claims Act cases have resulted in recoveries of over $600 million for the United States. His recent publications include articles for The National Law Journal, Trial Magazine, DC Trial Lawyer, and the Maryland State Bar Association Employment Law Deskbook. He can be reached at jholland@jgllaw.com

Veronica Nannis is a partner at Joseph, Greenwald & Laake, and is the Chair of the Firm’s Civil Litigation Department. She is a whistleblower and a class action attorney focusing on fraud cases. A Super Lawyer’s Rising Star in DC and Maryland for the last several years, she was also awarded the Maryland Association for Justice’s Trial Lawyer of the Year Award in 2011 with the team from Joseph, Greenwald & Laake. Recent publications include those for Law 360 and The Daily Record. She can be reached at vnannis@jgllaw.com

This blog, the second in a three-part series, (click here for Part 1) looks at other states’ grounds for divorce and how they compare to Maryland, when considering the broader question (discussed in Part 3) about whether it’s time to overhaul Maryland’s grounds for divorce.  Part 1 looks at trends in changes to Maryland’s grounds for divorce over the last several years.  I welcome hearing from readers about their thoughts.

How Other States Approach Grounds for Divorce?

Without comprehensively discussing all states’ laws, there are some notable trends and differences.

Most states’ grounds for divorce fall into the same broad categories as Maryland:

1)      Fault and no fault grounds; and,

2)      Grounds requiring a physical separation and those that do not.

Like Maryland, most states include grounds for incarceration/conviction of a crime, insanity, cruelty/domestic violence, and separation (fault or no fault).

What Do Other States Do Differently?

As for differences, at least 20 states do not recognize adultery as a ground.  Approximately 11 states offer one or very few grounds for divorce, being no fault only divorce states.  And, many states allow “legal separation” as either an alternatively or precursor to divorce.  Among the states allowing separation-based divorce, whether on a fault or no fault basis, separation periods vary from 3 months to 7 years, with an average no fault separation period of 1 to 2 years. 

Grounds permitted by other states of note:

·         Drug and/or alcohol addiction;

·         A breakdown in the marriage, often requiring no separation, having varying titles, such as:

o   Irreconcilable differences;

o   Complete incompatibility;

o   Irretrievable breakdown in the marriage, sometimes requiring failed reconciliations attempts;

·         Impotence;

·         Fraud or fraudulent contract, such as a deception that undermines the essence of the marriage;

·         Pregnancy, if unknown at the time of marriage and by someone other than the spouse;

·         Refusal to financially support a spouse;

·         Varying religious grounds (for example, joining a religious sect disavowing marriage);

·         Bigamy;

·         Deviant sexual behavior, which may include marital rape;

·         Ouster forcing a spouse out of the home and marriage;

·         Gross neglect of legal duties, either to the marriage, a spouse, or child; and,

·         Attempted murder of one’s spouse.

Closing Thoughts

Given the variety of grounds for divorce recognized by other states and developments in Maryland’s grounds for divorce (discussed in Part 1), it is time for Maryland to look at its grounds for divorce, addressing such questions as:

·         Whether to shift away from fault grounds to no fault only grounds?

·         Whether to continue to have fault grounds, and if how expand Maryland’s fault grounds?

·         Whether to further shorten or eliminate separation periods?

·         Whether there is a need for Maryland to offer and recognize “legal separation”?

·         Whether any of Maryland’s grounds are obsolete and should be eliminated?

My next blog in this series ties together Maryland’s trends with other states’ approaches, to consider whether it’s time for a broader update to Maryland’s grounds for divorce and what types of updates.

You can follow Lindsay Parvis for discussion, news, and developments in Maryland family law on LinkedIn, Facebook, Instagram, Twitter, and LindsayParvis.com, as well as subscribe to her Newsletter

Sharing our thoughts, photos and personal details on social media is so ingrained in many peoples’ lives that we do not think twice about the wealth of information left behind for anyone and everyone to discover.  But it should be a thought and consideration if you find in yourself heading towards a divorce or custody litigation.  As part of the discovery process you will likely have to produce complete copies of the history of your social media accounts.  It does not matter if your accounts are set to private – there is still a duty to provide the relevant discovery.

Most people cannot recall everything they have posted on social media since the inception of their accounts.  Posts that may have seemed glib or sarcastic in the moment do not always age well.  Further, they can take on a new meaning or be viewed in a different light when presented to a judge in a courtroom.  Things that they posted years ago, or in a fleeting moment, can come back to haunt you, especially during divorce or custody proceedings.  

So what can you do?  If you have not yet initiated divorce proceedings, you may want to deactivate your social media accounts.  There are a couple of reasons for doing so.

First, you will not be tempted to post negative things about your ex on social media.  It is easy when emotions run high, to send a quick tweet about dealing with a deadbeat ex.  What may have been venting in a moment of frustration, will turn into an exhibit to show a Judge that you are mean spirited and not willing to co-parent.  

Also, if you delete your social media, there will not a forum for well-meaning friends and relatives to make those types of comments on your account.  Your friends are generally able to comment on your posts, tag you in photos and locations, and mention you in their posts.  All of which may be well-meaning, and intended to be supportive during a difficult time, but not always helpful to your case!

Additional Reading: Five Reasons to Deactivate or Delete Your Facebook Account While Your Divorce Case is Pending ​

Quitting social media can also be good for your mental health and emotional wellbeing.  When going through a break up it can be particularly difficult to view all of the happy images on social media of intact families, not to mention seeing the posts of what were mutual friends, but have sided with your ex.  Or seeing posts of couples nights out, etc. or other events which will only make you feel left out.  A better option might be to spend that time joining a new group or picking up a new hobby where you can learn new skills, or meet new people.  

If you need more motivation, keep in mind the fact that the average individual spends about two and a half hours a day on social media.  When you are going through a divorce, that is valuable time you will need to meet with your attorney, gather documents and otherwise participate in the litigation process.  Often, clients are not prepared for the amount of time they must devote to their case – by the end they are referring to it as a part-time job.

But, before you delete any accounts, or take any final actions, make sure to consult with an attorney.  Under certain circumstances you may be prohibited from deleting any evidence, including social media accounts.  Failing to abide by these restrictions could be even more damaging than the actual information contained in your social media accounts.  If the Court finds that you were purposefully trying to hide information they can impose sanctions which can negatively impact your case.

 1.       What made you become a lawyer?

In college (in the South), I studied psychology and sociology.  I wanted to become a family counselor.  I took a job on weekends and in the summer working at a group home for underprivileged children.  After witnessing a friend and colleague being racially discriminated against, firsthand, it motivated me to use my influence in law for social good.  The next semester I started to study for the LSAT and to look at law schools.  I’ve been practicing law for almost 20 years and I still look to protect the disenfranchised.

2.       What will be the biggest challenge for the generation behind you?

I think that dealing with electronically generated evidence is a huge challenge for the generation behind me.  First, it produces an enormous amount of evidence such as hundreds of text messages and emails.  The challenge lies in the fact that no matter what you say online, in emails, or in text to anyone, it may be used against your client in Court when presented in a different context. While preparing for trial, you need to consider having the text message to rebut any unforeseen electronic evidence prepared and copied in triplicate. There is also a huge concern where a party may seek to add or delete from actual documents to rewrite the history to suit his or her narrative. 

3.       What is the most interesting case you’ve ever had?

Personally the most rewarding cases are those with children. But, I think the most interesting case is a non-custody case where my client’s wife suspected adultery (although he was not committing adultery).  The wife moved her mother into the master bedroom to sleep with her and dislodge my client. Each day the mother in law had nasty comments to make to my client passing him in the hallway, on the stairs, in the kitchen and throughout the house. He was relegated to sleeping in a guest bedroom. Not satisfied, the mother in law started openly talking about emasculating my client and started carrying hedge trimmers around the home. He was mortified and locked himself in the guest room.  When she started beating on the door, he appropriately called 911. While he was on the phone, fearing the worst, you could hear the wife and mother in law beating on the door and then broke it down with an axe.

I filed a Petition for a Protective Order. Wife claimed the instrument in her hands was small.  However, I took four bankers boxes (usually used to carry our paper files) and hollowed out a hole through the middle and carted in the axe she beat the door in so I could cross-examine her with the actual object she used and photographs of the door.  I won the hearing and my client had some therapy as the result. 

4.       How do you measure success?

It’s very subjective to measure success in litigation and in family law, specifically.  I measure my success in terms of time management, my own personal preparation for a case, and winning motions.  Success to me is when I believe I’ve gave it my best effort whether in a case or in life.

5.       What do you look forward to when you go to work every day?

I look forward to the people I work with. I cannot imagine doing my work efficiently without the help of my team (my colleagues, peer attorneys at the firm, paralegals, administrative assistants, legal assistants). There is so much more that can be accomplished by working as a team which also makes the work more rewarding.

Overtime pay for workweeks involving more than 40 hours of work is just one of the protections the law provides to prevent the exploitation of working people.  The Department of Labor revises its policies periodically to reflect the changes in the economy, and the overtime pay regulations are no exception to this principle.  On September 24, 2019, the U.S. Department of Labor issued an update to the Fair Labor Standards Act (FLSA).  These changes, which will go into effect on January 1, 2020, increase the number of American workers who will become eligible for overtime pay and will also give added flexibility to employers regarding how they dispense the overtime pay to the employees entitled to receive it.  If you want to be sure that you are meeting your FLSA requirements in your business, or if you are an employee who thinks your employer is not paying you fairly, contact Brian J. Markovitz a labor and employment lawyer at JGL Law.

How Overtime Pay Works

According to federal law, salaried employees must receive overtime pay equivalent to 1.5 times their hourly rate for every hour in excess of the fortieth that they work in any given 7-day period.  A salaried employee is someone whose pay is a set amount per a certain period of time (for example, per hour or per month).  Salaried employees do not receive overtime pay. Often, salaried employees are considered certain “highly compensated employees” (HCEs) do not receive overtime pay, as it is assumed that their high salaries and other prerequisites of their jobs are already sufficient compensation for long work hours

The New Regulations

The new regulations, which will apply beginning on January 1, 2020, raise both the amount counted as the standard salary level and the amount of pay one must receive to count as an HCE.  These changes reflect the overall increase in salaries across the country, as salaries should increase to keep up with inflation.  According to the new regulations, the new standard salary level will be $684 per week, compared to the old standard salary level of $455 per week.  $684 per week is approximately an annual income of $35,568.  The new regulation raises the threshold for the HCE designation from $100,000 to $107,432 per year.  The standard salary level and HCE level will be lower in U.S. territories where wages are lower.  The Department of Labor has also resolved to update the regulations more frequently to reflect ongoing changes in the economy.

Contact Brian J. Markovitz at JGL Law about Labor and Employment Cases

You have the right to receive overtime compensation if you work more than 40 hours per week.  Joseph, Greenwald, and Laake offers legal representation to people whose overtime pay has been withheld. Contact Brian J. Markovitz in Greenbelt, Maryland to exercise your right to fair pay for your work.

Maryland Expands Anti-Discrimination Law To Include Independent Contractors, And Expand Rights of Harassment Victims

The Maryland Human Relations Act (the “Maryland HRA”), is generally broader and procedurally distinct from its federal counterpart, commonly referred to as Title VII. Maryland has now amended its law in some very significant respects.

Independent Contractors

Title VII provides protection against discrimination and harassment in employment based on protected characteristics, like race and gender. However, Title VII does not cover independent contractors. So, under federal law, if an independent contractor is a victim of discrimination or sexual harassment in their workplace, there is no remedy under Title VII. With a higher percentage of workers employed in the “gig economy” as independent contractors, this leaves a gaping chasm in worker protection.

The amendments to the Maryland HRA (effective October 1, 2019) seek to address this.  Previously – and consistent with federal law – the Act applied only to employees, and contained no protection for independent contractors.  The definition of “employee” has now been expanded to now include “independent contractors” as follows:

Sec. 20-601(c)(1):  “Employee” means:

(I)    An individual employed by an employer; OR

(II)   AN INDIVIDUAL WORKING AS AN INDEPENDENT CONTRACTOR FOR AN EMPLOYER.

Going forward, independent contractors seeking redress for workplace discrimination in Maryland now should consider pursuing the claim under Maryland State law.

Harassment

Federal law has long recognized “harassment” based on a protected classification, such as sex, to be a form of discrimination banned by Title VII.  However, protection for workplace harassment is a judicial – not statutory – construct, recognized by the Supreme Court since 1986, in Meritor Savings Bank v. Vinson , 477 U.S. 57 (1986).  

The Maryland HRA has been amended to incorporate a statutory definition of harassment:

“Sec. 20-601(H):  “Harassment includes harassment based on race, color, religion, ancestry, or national origin, sex, age, marital status, sexual orientation, gender identity, or disability, and retains its judicially determined meaning, except to the extent it is expressly or impliedly changed in this subtitle.”

The Maryland HRA generally applies to “larger” employers with at least 15 employees for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year.  In that regard, the Act mirrored Title VII. Now, with respect to harassment claims, the Act has been expanded to apply to employers that have “one or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.”

The new law covers all employers in the state and is a dramatic expansion of the Maryland HRA anti-harassment provisions.

The new harassment provisions include a broad scope of conduct for which an employer may be held liable. This is a dramatic pivot in the law; and could well result in per se liability for employers. 

            “Sec. 20-611: In an action alleging a violation of this Subtitle based on Harassment, an Employer is liable:

(1)  For the acts or omissions toward an Employee or applicant for employment, committed by an Individual who:

(I)           undertakes or recommends tangible employment actions affecting the employee or an applicant for employment, including hiring, firing, promoting, demoting, and reassigning the employee or an applicant for employment; or

(II)          directs, supervises, or evaluates the work activities of the Employee;  or

(2)  If the negligence of the Employer led to the Harassment or continuation of Harassment.

This appears to be a far more relaxed standard for employees to satisfy than under federal law.

Finally, the new amendments under the Maryland HRA have significantly enlarged the filing deadlines and statute of limitations for claims of harassment:

·         For harassment claims, complainants now have 2 years from the date on which the alleged harassment occurred to file an administrative complaint with the Maryland Commission on Civil Rights (increased from 6 months).  Sec. 20-1004(c)(2).

Filing with a local human relations commission within 2 years of the alleged harassment satisfies this filing deadline. Id.  (The Maryland HRA continues to require filing with an administrative agency prior to filing a lawsuit in state or federal court.)  

·         For harassment claims only, the limitations period for filing a civil case in court has now been increased to 3 years from the date of the unlawful employment practice (previously 2 years).

These changes reflect a policy direction that sends a message to employers that engaging in or acquiescing to harassment in the workplace will not be tolerated. Accordingly, employers would be wise to enact stringent and enforced anti-harassment policies. A nod toward enforcement will not be enough.

Representation of client in one of the largest Health Claims Arbitration awards in Maryland, in a medical negligence case under Maryland Arbitration Statute – $5,500,000.

Successfully argued in front of the United States Court of Appeals for the Fourth Circuit the invalidation of a mandatory arbitration provision. Coady v. Nationwide Motor Sales Corp.