Tuesday, Feb. 15, 2011 | 12:08 p.m.
A Las Vegas medical practice is fighting an Allstate Insurance Co. lawsuit claiming the practice conspired with attorneys and others to bill the insurer for treatments that were either unnecessary or weren't performed.
Accident Injury Medical Center Inc. and others were sued in Las Vegas federal court in December by Allstate, which claimed the defendants engaged in a racketeering scheme.
The medical center on Friday became the first defendant to answer the lawsuit.
Its Las Vegas attorney, Karen Ross, filed a motion for dismissal, suggesting Allstate is "playing fast and loose with the courts" by first settling claims for 98 policy holders and then later trying to avoiding liability for those claims.
"In earlier settlements, plaintiffs accepted liability when they could have disputed the validity of the treatments and corresponding billing practices, all arising from the bodily injury claim," her filing said. "Plaintiffs now seek another bite at the apple by claiming that the treatments were invalid, or that the price was too high."
"By settling, plaintiffs forestalled or avoided litigation, where they would have been required to bring any claims arising out of the same transaction or occurrence," the medical practice filing said. "Plaintiffs voluntarily relinquished those claims and preserved significant cost associated with litigation. Plaintiffs should not be permitted to reassert the claims in this later litigation."
Ross in her filing also argued the suit should be dismissed because some of Allstate's claims are barred by the statute of limitations and because Allstate failed to specify how it claims it was defrauded.
"Legal conclusions that are cast as factual allegations are not entitled to an assumption of truthfulness," Ross argued in her motion.
She said that under both state and federal racketeering laws, plaintiffs "must not only identify the misrepresentations, but must also identify when, where and how such misrepresentations were made."
Allstate in its lawsuit failed to do this, she charged.
"Plaintiffs fail to plead even one instance of fraud with specificity. Rather than meet the pleading burden by stating `the who, what, when, where and how,' plaintiffs rely on generic allegations of misconduct between 2004-2010 and claimed patterns of misbehavior," Ross wrote in her filing. "No specific medical records, claimed to be fraudulent, are identified. No treatments, alleged to be fraudulent, are identified. Not a single misrepresentation is particularized."
Allstate hasn't yet responded to Ross's assertions and the other defendants -- including Richard Charette -- have not yet answered the Allstate complaint.
Charette on Feb. 1 pleaded guilty in federal court to conspiracy to illegally disclose personal health information from UMC as part of a scheme to solicit business for personal injury attorneys.
Information leaks involving University Medical Center were first made public by a Las Vegas Sun investigation.
In a third case active in Clark County District Court, UMC patients claiming to have been harmed by disclosure of their private health information are suing three of the parties Allstate is suing: Charette, Accident Trial Lawyers LLC, which was managed by Charette; and attorney Andrew Taylor. UMC was earlier dismissed as a defendant in that case.
In a Jan. 24 motion for dismissal of that suit, Taylor, representing himself and Accident Trial Lawyers, argued "plaintiffs do not have proof or even truly know if their private information was compromised."
"There is not one shred of evidence that connects Andrew Taylor or Accident Trial Lawyers to the plaintiffs; plaintiffs might as well be suing the flower shop located near UMC, or someone who happens to take the bus from the bus stop near the hospital because these connections to the defendants are just as vague," he wrote.
Attorney Jesse Sbaih, representing the plaintiffs, fired back in a Feb. 9 filing: "Defendants wish to escape their responsibility to the many people they injured while attempting to unlawfully enrich themselves."
Sbaih submitted an affidavit from a patient, Felipe Lopez, who said that after a May 12, 2009, car accident she was taken by ambulance to UMC for treatment.
"The day after, I received a telephone call from a woman who told me that she heard I was involved in an accident and had been to the hospital. The lady then asked me if I needed a lawyer. I told her yes. She then referred me to Accident Trial Lawyers," the affidavit said.
Lopez said in the affidavit that prior to her accident she didn't know anything about the Accident Trial Lawyers law office.
When she want to the law office, she was told Taylor would be her attorney and about five months later, Taylor and Accident Trial Lawyers settled her personal injury case, the affidavit said.