New Testimonial

I have just received a new testimonial that I would like to share.

Attorney Ric Barrera successfully got my case dismissed when the Texas Board of Nursing attempted to take my license away after I reported abuse in a Texas psych ward. Mr. Barrera dismantled the case against me, got to the root of the people behind it and turned it around on the perpetrators after he got my case thrown out. — AA

Are Whistleblowers Stopped from Reporting Fraud by Non- Disclosure Agreements?

In general, non-disclosure agreements do not effectively silence whistleblowers who would report a fraud designed to bilk government health programs under certain circumstances. In fact, there is strong public policy in favor of protecting whistleblowers who report fraud against the government. However, the Court will consider the scope and the volume of the documents that are taken in making its consideration as well as many other factors in order to determine that the whistleblower acted reasonably and did not conduct extra judiciary discovery.

In fact, the American Psychiatric Association required its task force members for the new Diagnostic Statistical Manual 5 (DSM 5) to execute a non-disclosure agreement, which essentially eliminated transparency. The DSM is the psychiatric catalog of mental illnesses which has grown to over 370 mental illnesses in its latest rendition, including dubious diagnoses such as reading disorder, disorder of written expression, mathematics disorder and caffeine intoxication disorder. Each named disorder is coded for government and private insurance billing purposes.

The interesting part about that is that each member of the 27-person DSM-5 task force, those writing and editing the manual, had to sign a non-disclosure agreement and that 69% of those task force members had ties to the pharmaceutical industry, which arguably can be seen to load the deck for voting purposes.

Unfortunately, the DSM 5 task force made it is easier than ever to diagnose many people with a mental disorder due to the broad categories now available and suspect “illnesses” such as internet gaming addiction, binge eating and caffeine withdrawal. The taxpayer is going to be shelling out big bucks for pharmaceuticals and mental health “treatment” for these things, straining an already overburdened health care system.

Whistleblowers may be entitled to a portion of the recovery of any found to be part of a scheme to defraud government health programs.

It is necessary that an attorney that is competent to advise whistleblowers be utilized early in the reporting of fraud when a non-disclosure agreement is employed so that the information may be effectively employed and the whistleblower may be effectively protected.

Antipsychotics Linked to Sudden Cardiac Death

Doctor with RX prescriptionAntipsychotic drugs have proven to be one of the most profitable commodities of Big Pharma. In fact, Zyprexa has made Eli Lilly over $70 billion. It is sold at $12 a pill and is used by many state institutions and state foster care programs, at a steep cost to the tax payer.

However, a recent study has shown that Zyprexa, Risperdal, Haldol, and other antipsychotics dramatically increase the risk of sudden cardiac death (SCD). In fact, the Oregon Sudden Unexplained Death Study conducted by Dr. Audrey Uy-Evanado of Cedars-Sinai Medical Center in Los Angeles found that individuals on these drugs tripled their risk of sudden cardiac death and that there is a direct link between these drugs and this fatal condition.

No one should have to die as the result of treatment with these drugs and families who have had a member do so should seriously consider bringing a legal suit against the drug manufacturer.

In order to be successful against Big Pharma in such a lawsuit concerning, one would need to show that the medication was the cause of death and other factors must be ruled out or shown not to be the cause of death. Medical research now appears to back up such a claim.

Consumers need to be protected and drug manufacturers who allow such dangerous products to be on the market should be punished.

Successfully Protecting Nurses and Doctors from Whistleblower Retaliation and Board Complaints

Can a hospital or medical clinic bring a State licensing board complaint against a whistleblower for blowing the whistle on fraud and/or substandard care?

Unfortunately, this is an all too often strategy used to discredit those who seek to take a stand in protecting their patients and their own professional licenses.

The Federal False Claims Act (FCA) provides protection for whistleblowers against retaliation. However, it is necessary for a skilled attorney to be brought on early in the fraud reporting process to provide the strong legal armor needed to fend off the desperate attempts of civilly and criminally liable fraudsters.

The FCA allows an individual with evidence of fraud against the federal government, to sue the perpetrator to recover the stolen funds and is rewarded by a percentage of the funds recovered. Prohibited retaliation includes: termination, suspension, demotion, harassment or any other discrimination in the terms and conditions of employment. In order to prevail, an employee must prove: (1) that the employee took action in furtherance of an FCA action; (2) that the employer knew about these acts; and (3) that the employer discriminated against the employee because of such conduct.

A person with knowledge of a scheme to defraud government health programs such as medicare, medicaid, and tri-care is essentially between a rock in hard place. If a person ignores the fraud exists, they may be implicated later for being complicit with the scheme, lose their state license, and face the embarrassment of a government probe, or they can retain an attorney with skill and knowledge on the Federal False Claims Act so that they may retain their rights and earn a portion of the money recovered.

The correct strategy is to consult an attorney prior to taking steps and actions that may lead you into the traps that are carefully laid to discredit the whistleblower and strip them of their professional credentials.

The False Claims Act and Qui Tam Lawsuit

The False Claims Act ( FCA) was originally enacted during the Civil War with the purpose of protecting the Union Army from unscrupulous suppliers. More recently, the FCA has been a powerful tool to fight fraud on the part of government defense contractors and since 1999 there have been an ever growing number of prosecutions concerning the sales, marketing and pricing practices of pharmaceutical companies.

The FCA combats fraud by imposing civil liability on individuals or entities that “knowingly presents or causes to be presented, a false or fraudulent claim for payment or approval” to the federal government. 31 U.S.C. § 3729.

Essential to the effectiveness of the FCA is the ability of whistleblowers to sue on behalf of the United States. This provision known as a “qui tam” provision allows the individual with evidence of fraud against the federal government, referred to as the “relator” to sue the perpetrator to recover the stolen funds. Qui Tam is an abbreviation of the Latin phrase “qui tam pro domino rege quam pro sic ipso in hoc parte sequitur” meaning “he who as well for the king as for himself sues in this matter.”

The FCA provides for up to treble damages, and the relator is entitled to receive between 15 and 25 percent of the amount recovered by the government through the qui tam action.

Prosecutors and whistleblowers have made headlines using the FCA to fight virtually every kind of healthcare fraud from billing for procedures that were not performed to off label marketing of pharmaceuticals. The New York Times reported on the largest FCA settlement to date in June 2012, “the British drugmaker GlaxoSmithKline agreed to plead guilty to criminal charges and pay $3 billion in fines for promoting its best-selling antidepressants for unapproved uses and failing to report safety data about a top diabetes drug. . . . The agreement also includes civil penalties for improper marketing of a half-dozen other drugs.”

However, liability extends well beyond the marketing of pharmaceuticals and into the R&D process. There is a growing trend in prosecutions associated with the falsification of data in laboratory studies and clinical trials. Should a pharmaceutical company outsource a portion of this function to a Contracted Research Organization (CRO), it is clear that pharmaceutical companies remain liable for the CRO’s actions.

Clinical and medical trial fraud occurs when a pharmaceutical manufacture provides false data to the FDA, withholds or alters negative data regarding the safety and efficacy of a drug, violates the recognized norms of research in order to influence trial outcome or fails to follow study protocol. An example of R & D fraud would be a defective pharmaceutical causing birth defects or suicidal behavior, where the manufacture concealed the risks and continued to market the drug falsely promoting the efficacy and miscoding side effects.

Clinical and medical trial fraud is actionable under the FCA as a form of healthcare billing fraud when Medicaid and Medicare (or other federally funded health program) make payments for drugs whose FDA approval was based on false information. With fraudulent FDA approval, the drug in question would not necessarily be safe or effective. And an unsafe and/or ineffective drug would not be reasonable or necessary—a requirement to be reimbursed under any federal healthcare program. Thus under the FCA, a whistleblower with knowledge of clinical trial fraud or falsification of data used in the FDA approval process, is able to bring a qui tam action against the pharmaceutical manufacturer.

Are Mental Diagnoses Based on Racial Bias?

Is the model of mental health based on an idealist concept of an educated European American?

Portrait of BoyThe American Psychiatric Association publishes the Diagnostic Statistical Manual (DSM). First published in 1952, the DSM classifies and categorizes mental conditions it supposes are mentally ill or defective. Alisha Ali, PHD, from NYU, stated “The central issue underlying the problem of racial bias in psychiatric diagnosis is the dominance of a white, Western viewpoint in psychiatry. Because of this viewpoint, the kinds of behavior most likely to be considered normal in DSM classification are those that are acceptable within mainstream society.” Ali goes on to say, “Even the inclusion of a list of so-called “culture-bound syndromes” in an appendix of the DSM perpetuates this biased viewpoint, because a clinician applying such culture-bound labels is nevertheless expected to adhere to the DSM authors’ approach to diagnostic formulation.”

Washington Post reporter Shankar Vedantam wrote in a 2005 article, “John Zeber recently examined one of the nation’s largest databases of psychiatric cases to evaluate how doctors diagnose schizophrenia . . . [t]he scientist found that blacks in the United States were more than four times as likely to be diagnosed with the disorder as whites. Hispanics were more than three times as likely to be diagnosed as whites. Zeber, who studies quality, cost and access issues for the U.S. Department of Veterans Affairs, found that differences in wealth, drug addiction and other variables could not explain the disparity in diagnoses: “The only factor that was truly important was race.”

Should a Mexican American child be labeled as ADD if the child cannot learn to read and write in English well? Should a Mexican American elderly women be labeled “hyper-religious” if they communicate with God or the Holy Spirit? The questions are moot. This is already being done. There are no absolute tests and subjectivity can be hard to interpret. However, the numbers and case studies speak for themselves. Those who feel they are being racially discriminated should take a stand. Failure to racially assimilate is not a mental disorder.

Whistleblower Alert: Should Pharma Companies Pay Psychiatrists for Promotional Work in Heavy Medicaid Areas?

Federally-funded healthcare programs are being depleted at a rapid rate. Promotional work by physicians is generally allowed when not in violation of the Stark Law and the Federal False Claims Act i.e. Off Label etc. However some physicians may not be qualified as experts in the areas of medication they promote and others may have pending disciplinary matters that make them even less qualified to do promotional work in that area.

The Rio Grande Valley in Texas has over 400,000 people who are eligible to receive Medicaid. Are Pharma companies knowingly competing for that government money?

Whistleblowers are generally compensated for providing evidence of fraud on government programs such as Medicare, Medicaid and TriCare. A private attorney may assist a whistleblower to prepare a complaint on behalf of either or both the federal and state government so that funds may be recovered and the government has an opportunity to intervene. Cases are filed under seal and are highly confidential. Complex rules exist that regulate the conduct of whistleblowers.

Whistleblower Alert: Did Drug Companies Knowingly Design Certain ADD and ADHD Drugs to be Addictive?

Certain ADD and ADHD Schedule II Drugs contain combinations of amphetamine salts. Many individuals taking these develop a strong dependence on the drug, or more importantly, on the amphetamine effect that is caused by the drug. Withdrawal from these drugs may be extremely difficult.

Guidelines exist under Good Clinical Practice (GCP) as to ethical practices regarding the R&D of new drugs. Conflicts of interests and misleading statements to the government are prohibited. However, individuals having knowledge of any wrongdoing in R&D may feel intimidated to report questionable activity because of waivers and confidentiality agreements.

Whistleblowers are generally compensated for providing evidence of fraud on government programs such as Medicare, Medicaid, and TriCare. A private attorney may assist a whistleblower to prepare a complaint on behalf of either or both the federal and state government so that funds may be recovered and the government has an opportunity to intervene. Cases are filed under seal and are highly confidential. Complex rules exist that regulate the conduct of whistleblowers.

Mirena IUD May Cause Injuries and Miscarriages

Woman in painThe Barrera Law Firm is currently investigating the T-Shaped Mirena IUD device, which was designed to prevent pregnancies. However, the device has been found to move out of place well after it was installed and may cause injuries, failures to prevent pregnancy and complications to pregnancy.

Mirena IUD Injuries

Mirena IUD injuries may occur when the birth control device gets out of place and causes injuries. When the Mirena device moves from its original location, it may cause a uterine perforation or uterine rupture. In such cases, the IUD may also move outside of the uterus, leading to intestinal perforations or obstructions, damage to other organs, adhesions, scarring, infection, infertility and pelvic inflammatory disease.

Failure to Prevent Pregancy and Pregnancy Complications

If the Mirena IUD migrates, it will no longer prevent pregnancy. Women who become pregnant with Mirena still in their body are at risk for ectopic pregnancy, miscarriage and sepsis.

Whistleblower Alert: Is ECT Medically Necessary?

ECT machineThe government is currently paying for electro convulsive therapy (ECT) at a high cost to tax payers and at an immense profit to medical providers. Medicare, Medicaid, and TriCare often foot the bill despite questionable motivations and results. The practice of ECT is both condoned and encouraged by the American Psychiatric Association (APA), through the use of the Diagnostic Statistical Manual (DSM).

Whistleblowers are generally compensated for providing evidence of fraud relating to government programs such as Medicare, Medicaid, and TriCare. An attorney may assist a whistleblower to prepare a complaint on behalf of either or both the federal and state government so that funds may be recovered and the government has an opportunity to intervene. Cases are filed under seal and are highly confidential. Complex rules exist that regulate the conduct of whistleblowers.

Whistleblowers get terminated because they are a threat to continuing the fraud. The usual pattern is:

  1. Whistleblower gets the feeling that something is wrong in the workplace regarding schemes towards government funding and becomes concerned about participating or condoning of such action;
  2. Whistleblower points out illegal or fraudulent activity;
  3. Whistleblower becomes target to get handled or terminated;
  4. Whistleblower comes under close employment scrutiny and traps are laid; and
  5. Whistleblower gets terminated through the pretext of a carefully manipulated series of incidents.

Whistleblowers that do not come forward run the risk of facing civil and/or criminal consequences. When one experiences the feeling that something is wrong in the workplace regarding schemes towards government funded programs, smart and legal actions should be taken swiftly to avoid the inevitable consequences.