Once, Derika Moses held records in track and field. She was a force to be reckoned with on the softball diamond. But, as she hoisted a case of soda onto a grocery store display in 2007, everything changed.
Her back wrenched. The pain was fierce. Her best bet, she was eventually told, was spinal fusion surgery — a risky and invasive procedure that the Mayo Clinic warns may be no more effective than nonsurgical treatment for some types of back pain.
Eager for relief, Moses had the surgery at Riverside Community Hospital in 2008 — but the agony didn’t subside. She suffered painful complications and in 2013, when she could stand it no longer, she opted to have the hardware removed from her spine, despite the dangers inherent in such a procedure, according to court documents.
Moses carried home a rattling collection of screws and rods that were once embedded in her bone, and didn’t think much more about it until news of Operation Spinal Cap broke the following year, according to her long-delayed lawsuit, which is finally proceeding in Riverside Superior Court.
Fraud charges, not counterfeit
Operation Spinal Cap is a mammoth federal healthcare fraud investigation that began in 2013 and is so enormous it continues today. It froze more than 100 civil lawsuits like Moses’ as it targeted a criminal scheme stretching across a decade that generated nearly $1 billion in fraudulent claims to federal and state governments as well as to private insurers. The U.S. Department of Justice said the scheme involved some $40 million in illegal kickbacks to doctors, chiropractors, marketers and other medical professionals.
The DOJ has racked up 23 convictions in Operation Spinal Cap thus far, the latest of which is neurosurgeon Lokesh Tantuwaya, 55, of San Diego, who pleaded guilty Sept. 1 to accepting some $3.3 million in bribes for doing spinal surgeries at the now-defunct Pacific Hospital in Long Beach.
The first conviction was the hospital’s erstwhile owner, Michael Drobot of Corona del Mar, who pleaded guilty to conspiracy and paying illegal kickbacks in 2014, admitting he orchestrated a wide-ranging fraud in which “thousands of patients received surgeries at Pacific Hospital not knowing that (Drobot) bribed their physician to perform their surgery at Pacific Hospital,” prosecutors wrote in a sentencing memo. Drobot “was motivated by greed and ultimately profited millions of dollars through the scheme,” the memo said.
Then-state Sen. Ronald Calderon was ensnared in the web as well. Drobot bribed Calderon in an effort to protect a now-repealed state law allowing hospitals to pass the full cost of spinal surgery implants on to workers’ comp insurers — an important source of cash for the scheme, prosecutors said.
Patients like Moses who endured these surgeries — which may not have been necessary to begin with — were glad to see the fraud convictions, but deeply dismayed that the DOJ didn’t, literally, dig deeper. The screws and rods implanted in their spines via these kickback surgeries weren’t always the real deal, Moses and many others say, but cheap knockoffs manufactured in an unsanitary machine shop in Temecula, mixed with genuine product and then shipped all over the country.
Most of the hardware is still embedded in people’s bodies, making such claims exceptionally hard to prove in criminal court. But Moses can hold those screws and rods in the palm of her hand.
A federal judge said that, because of the complexity of restitution for patient victims, civil litigation might provide a more appropriate remedy than criminal prosecution.
And there has been a flood of civil lawsuits against doctors and hospitals in Los Angeles, Riverside and San Bernardino counties — many against hospitals and doctors not criminally charged in Operation Spinal Cap.
All those lawsuits, however, had to wait until the DOJ’s criminal investigation wrapped up before being heard so as not to compromise the investigation.
That time has finally come. Sort of.
The Moses case, originally filed in 2014, is considered a “bellwether,” or test trial. Scores of patients with pending suits are anxiously watching its every twist and turn. Delays related to alleged juror contempt frustrate people like Joshua Lash, a former Los Angeles County sheriff’s deputy who said he was coaxed into his spinal surgery and has been in agony ever since. He lost his career at age 41, and chalks it up to greed.
“Unfortunately, as I lay in pain, disabled and without medical insurance, once again we are delivered another judicial blow to protect the greedy,” he said by email about the courtroom fight over jurors in the Moses case. “It is too bad victims cannot have defense teams stacked with adjunct legal professors and greatest ‘white collar’ scholars money can buy.”
A hearing on that is slated for October.
Doctors and hospitals targeted by patient lawsuits deny any wrongdoing, including knowingly using inferior product in surgeries. In court filings, Drobot said his companies never bought or used knock-off screws or parts for spinal surgeries, and that the absence of such charges in the federal investigation proves it.
A lawyer for whistleblowers who alerted authorities to the scandal disagreed. It’s easier to prosecute doctors for kickbacks than to prove counterfeit hardware is inside of people, said attorney Justin Berger.
“Hopefully we’ll see some justice for the victims soon,” he said.
Source: Orange County Register