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FIRST JURY TRIAL TO APPLY MALELLA RESULTS IN UNANIMOUS VERDICT ON BEHALF OF INSURERS

July 2008

In, Andrew Carothers. M.D., P.C. v. Allstate Insurance, et. al, Jury finds "clear and convincing evidence" that physician did not own and control professional medical corporation JULY 22, 2008 - STATEN ISLAND, NY -- In the first significant case to be tried before a judge or jury in New York applying the "Corporate Practice of Medicine Prohibition" principles established in the landmark decision of State Farm v. Malella, a Richmond County jury unanimously found that a medical professional corporation was owned and controlled by two (2) non-physicians rather than the physician whose name appeared on the certificate of incorporation. The effect of the verdict is that the medical professional corporation is ineligible to collect first-party no-fault benefits, and represents a major victory for the New York automobile insurance industry.

After a four and a half week trial in Richmond County Civil Court, before Judge Peter Sweeney, a unanimous (6-0) verdict on July 17, was delivered after less than 4 hours of deliberation. The case was the consolidation for trial of several thousand individual no-fault lawsuits; the verdict delivered by the jury relieves the New York automobile insurance industry of approximately $20 million in pending claims.

Barry I. Levy, a partner at Rivkin Radler LLP, who served as co-lead trial counsel on behalf of more than 50 insurers, called the unanimous verdict an important one for both insurers and patients. "The decision will reinforce the insurance industry's efforts to curb the fraud and abuse which has victimized the industry for nearly a decade. For patients, Carothers is also a major victory as it will help ensure that the delivery of medical care focuses on what is appropriate, necessary and in the best interests of the patient, rather than pecuniary gain for non-physicians," he said.

In Carothers, the jury found by "clear & convincing evidence" that:

  • The professional corporation was "fraudulently incorporated"; i.e.: that Dr. Andrew Carothers did not own and control it;
  • Dr. Carothers did not engage in the practice of medicine while the professional corporation was providing services to patients. The law requires that a physician has to not only own and be in control to be a shareholder of a professional corporation, but also has to be involved in the medical services delivered through the professional corporation.
  • Clear and convincing evidence of Dr. Carothers' lack of ownership and control was demonstrated in part by the division of the professional corporation's profits while the corporation was providing medical services in 2005 and 2006. During that time, Dr. Carothers received approximately $135,000, while the corporation was paid more than $12 million by insurers. Essentially, all of the money that the insurance industry paid was siphoned to Hillel Sher and Irina Vayman, who were found by the jury to be "owners," and in control of the professional corporation.
  • Under Malella, physicians are required to be the sole "owners" of professional medical corporations and a physician may not front for non-physicians to create an entity for the purposes of billing and collecting on claims. Malella also held that insurance companies were entitled to look behind the corporate paperwork to determine what the reality was with respect to who was actually in control and receiving the profits. In doing so in Carothers, the jury found that there was no mystery as to who was the "true owner" of the professional corporation.

The decision has important implications for medical providers and insurers in New York. It will help to further reform efforts within the community involving the delivery and billing for medical services under New York's no-fault laws by ensuring that only physicians own and control medical practices; helping to curb fraudulent claims and non-physician involvement in the delivery of medical services. In addition, Carothers should have both short and long-term remedial consequences related to non-physicians who would seek to purchase physician licenses; i.e.: "Doc-in-the-Box," for the purpose of creating and operating professional corporations rather than establishing legitimate arms-length business relationships.

Currently several states have prohibitions on the corporate practice of medicine that are similar to New York's, including New Jersey, Illinois, Texas and Michigan. In the long-term, it is likely to impact other states much like Malella did.

Serving as co-lead counsel with Barry I. Levy of Rivkin Radler LLP, were John E. McCormack of John E. McCormack, P.C., Craig Freiberg of Freiberg & Peck, LLP and Vincent Gerbino of Bruno Gerbino & Soriano, LLP. Smith Valliere & Martinez PLLC and Marvin Ben-Aron, represented the plaintiff.

Experts who testified on behalf of the defendants-insurers included (i) Mark Warshavsky, CPA, a partner at Gettry Marcus Stern & Lehrer, CPA, P.C. -who testified concerning the areas of forensic accounting and business valuation, (ii) Bruce C. Zablow. M.D., who testified in the areas of radiology and private radiology practices, and (iii) Michael Abboud, the President of Monarch Medical, Inc., who testified in the area of the purchase and sale of used MRI equipment.

Experts who testified on behalf of the plaintiff included (i) Gary I. Fields, Esq. who testified concerning customs in the MRI industry and (ii) Terrance Gill, who testified concerning business valuation.

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