NORMAN J CLEMENT RPH., DDS, NORMAN L. CLEMENT PHARM-TECH, MALACHI F. MACKANDAL PHARMD, BELINDA BROWN-PARKER, IN THE SPIRIT OF JOSEPH SOLVO ESQ., INC., SPIRIT OF REV. IN THE SPIRIT OF WALTER R. CLEMENT BS., MS, MBA. HARVEY JENKINS, MD, PH.D., IN THE SPIRIT OF C.T. VIVIAN, JELANI ZIMBABWE CLEMENT, BS., M.B.A., IN THE SPIRIT OF THE HON. PATRICE LUMUMBA, IN THE SPIRIT OF ERLIN CLEMENT SR., EVELYN J. CLEMENT, WALTER F. WRENN III., MD., JULIE KILLINGSWORTH, RENEE BLARE, RPH, DR. TERENCE SASAKI, MD LESLY POMPY MD., CHRISTOPHER RUSSO, MD., NANCY SEEFELDT, WILLIE GUINYARD BS., JOSEPH WEBSTER MD., MBA, BEVERLY C. PRINCE MD., FACS., NEIL ARNAND, MD., RICHARD KAUL, MD., IN THE SPIRIT OF LEROY BAYLOR, JAY K. JOSHI MD., MBA, AISHA GARDNER, ADRIENNE EDMUNDSON, ESTER HYATT PH.D., WALTER L. SMITH BS., IN THE SPIRIT OF BRAHM FISHER ESQ., MICHELE ALEXANDER MD., CUDJOE WILDING BS, MARTIN NJOKU, BS., RPH., IN THE SPIRIT OF DEBRA LYNN SHEPHERD, BERES E. MUSCHETT, STRATEGIC ADVISORS
Healthcare Under Siege: Medicine’s Criminalization
Dr. Rifai’s journey, marked by trauma, service, and ultimately, vindication, stands as a testament to the “indomitable spirit of those committed” and a reminder that “truth, though battered, still speaks” when individuals dare to “say: I did nothing wrong.” Physicians and patients are increasingly being pushed into the role of law enforcement, which hampers healing and serves as a poor approach.
Dr. Marjorie Belsky, MD.,ESQ., has pointed out,
Unfortunately, HIPAA and privacy laws do not withstand either the DOJ investigations, nor the CSA, and both physicians and patients are forced to participate in these criminal investigations that are traceable to financial complaints by insurers.
The “lines being blurred” in Tenielle Brown’s paper are the lines between tort law and criminal law. Medicine is taught and practiced under a tort standard, which governs how medical malpractice cases are adjudicated. The government ( DOJ, Local law enforcement, the DEA, the Pharmacy board, and the Medical boards ) has now inserted a criminal component into every facet of medicine.
Tort law and criminal law do not comport, and therefore, medicine cannot be practiced under a criminal legal standard. This leads to distrust between patients and physicians, creates fear in the public, and prevents medicine from being practiced as it ought to be.
ARREST of ALEX WUBBELS, PROTECTING AN UNCONSCIOUS PATIENT’S RIGHTS
Further, this has seeped out of the office and into our hospitals with the 2017 arrest of Alex Wubbels, a nurse at the University of Utah hospital who was arrested after she would not allow a police officer to do a blood draw on an unconscious patient.
We can clearly see that with the indictment and verdict in the Neal Anand trial, an insurer conducts an audit of the highest billing physicians and then files a complaint with a government agency, alleging that the physician is overbilling and performing medically unnecessary procedures.
The agency passes it to other agencies. A warrant ensues, and the government subpoenas patient records.
The PMP is used as support for overprescribing medications, and an indictment ensues. This playbook happens every day without or without the PMP and was initially offered as a strategy by McKinsey in the 1990s to Allstate, called the zero-sum game, and delineated in the book by Jay Feinman called Deny, Delay, Defend.
In the United States. v Orlandis Wells NV 2022, the playbook read the same way. The government, which is law enforcement, took it upon itself to use the PMP as support for an indictment. Ironically, the PMP was introduced as a medical decision tool for physicians in 1995 in Nevada, allowing doctors to view other scheduled medications.
DOJ-D.E.A. PLAN STRATEGY OF creating fear and intimidation
The CSA authorizes the DEA to track physicians and patients, formulate quotas for prosecutions, and indict and potentially incarcerate physicians and patients for medication prescribing habits and patient utilization.
Using the information gleaned from the mandated prescription-tracking databases and the authorization provided by the CSA, private for-profit companies run the data through proprietary algorithms to assist the government in both criminal and civil proceedings as deemed necessary by the government”.
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Sutton, Kristina, and Belsky, Marjorie. The Scarlet ‘C’ (September 15, 2021). Available at SSRN: https://ssrn.com/abstract=3974275 or http://dx.doi.org/10.2139/ssrn.3974275
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REFERENCE:
Timeline of Main Events
1990s:
- McKinsey introduces “zero-sum game” strategy to Allstate: This strategy, later detailed in Jay Feinman’s book Deny, Delay, Defend, involved insurers conducting audits of high-billing physicians and filing complaints with government agencies alleging overbilling and unnecessary procedures.
1995:
- Prescription Monitoring Program (PMP) introduced in Nevada: Initially conceived as a medical decision tool to help physicians view other scheduled medications for patients.
2017:
- Arrest of Nurse Alex Wubbels: At the University of Utah hospital, Nurse Wubbels is arrested for refusing a police officer’s demand for a blood draw from an unconscious patient without a warrant or consent. This incident is cited as an example of law enforcement encroaching on healthcare settings.
Late 20th Century – Present:
- Increasing Criminalization of Medicine: A broader trend emerges where the government (DOJ, local law enforcement, DEA, Pharmacy boards, Medical boards) introduces a criminal component into various aspects of medicine, blurring the lines between tort law and criminal law. This involves the use of PMP data, insurer complaints, and criminal investigations, often traceable to financial complaints by insurers.
- HIPAA and Privacy Laws Undermined: DOJ investigations and the Controlled Substances Act (CSA) are noted for overriding HIPAA and patient privacy laws, forcing physicians and patients to participate in criminal investigations.
- CSA Authorization and Data Tracking: The CSA authorizes the DEA to track physicians and patients, establish prosecution quotas, and potentially indict and incarcerate them based on prescribing habits and patient utilization of medications.
- For-Profit Companies Aid Government: Private, for-profit companies use data from mandated prescription-tracking databases and CSA authorization to run proprietary algorithms, assisting the government in both criminal and civil proceedings.
- “Playbook” for Physician Indictments: A recurring pattern is observed: an insurer audits a high-billing physician, files a complaint with a government agency, leading to a warrant, subpoena of patient records, and the use of PMP data to support accusations of overprescribing, resulting in an indictment.
Specific Cases (Dates within this period, but exact year not specified beyond 2022):
- Neal Anand Trial: An example of the “playbook” in action, where an insurer’s audit leads to a government complaint and subsequent indictment and verdict. Michael Petron served as a factual witness for the DOJ in this case.
- United States v. Orlandis Wells (NV 2022): This case exemplifies the “playbook” where law enforcement utilized the PMP to support an indictment.
Ongoing Concerns:
- Distrust and Fear in Healthcare: The criminalization of medicine leads to distrust between patients and physicians and creates fear in the public, hindering proper medical practice.
- Physicians and Patients in Law Enforcement Roles: The current system forces healthcare providers and patients into a law enforcement role, which is deemed detrimental to healing.
- Dr. Rifai’s Journey: Dr. Rifai’s personal experience of trauma, service, and eventual vindication is highlighted as a testament to resilience and the pursuit of truth in the face of these challenges.
Cast of Characters
Jay Feinman: Author of the book Deny, Delay, Defend, which delineates a strategy initially offered by McKinsey to Allstate in the 1990s, described as the “zero-sum
Dr. Muhamadaly Rifai, MD: A physician whose personal journey is presented as an example of resilience and vindication against the backdrop of medical criminalization. His story emphasizes the importance of standing firm in one’s integrity (“I did nothing wrong”).
Dr. Marjorie Belsky, MD: An expert and co-author (with Kristina Sutton) of “The Scarlet ‘C'”. She points out how HIPAA and privacy laws are insufficient against DOJ and CSA investigations, forcing physician and patient participation in criminal proceedings driven by insurer financial complaints.
Tenielle Brown: Author of a paper that discusses the “blurring lines” between tort law (governing medical malpractice) and criminal law in the context of medicine. Her work highlights how applying criminal legal standards to medicine creates distrust and hinders proper practice.
Alex Wubbels: A nurse at the University of Utah hospital who gained public attention for her 2017 arrest. She was apprehended for refusing a police officer’s demand to draw blood from an unconscious patient without legal justification, illustrating the encroachment of law enforcement into clinical settings.
Michael Petron: A Managing Director and Co-President of the Disputes, Claims, & Investigations group at Stout. He served as a factual witness for the DOJ in the Anand, et al. case, paid $280,000. Described as an expert in applying statistics, accounting, and finance to white-collar crimes and civil litigation, though his work is critically portrayed by some sources as “manufacturing mathematical illusions.”
Neal Anand: The defendant in a trial (Anand, et al. case) mentioned as an example of the “playbook” where an insurer’s audit leads to government investigation, indictment, and verdict.
Orlandis Wells: The defendant in the case United States v. Orlandis Wells NV 2022, another example cited where the government (law enforcement) used the Prescription Monitoring Program (PMP) to support an indictment.
