|Judge King Demands Supplemental Briefings In Sim Hoffman, M.D. Work Comp Fraud Case In Orange County. He Asks Of The Prosecution, 'What are the false claims?'|
By Lonce Lamonte - November 4, 2018
The judge still did not rule on the defense's 995 motion to dismiss on Friday. He walked out of his chambers at about 9:30 am and up to his bench while putting on his robe. The honorable Richard King opened court on Friday, November 2nd 2018, in Orange County Superior Court, department C-45, to hear once again the Sim Hoffman, M.D. workers’ compensation fraud case.
The parties are still embroiled in the 995 motion. Just before and as court opened, Shaddi Kamiabipour, the prosecutor, sat on the left side, from the audience perspective, at the attorneys’ table. She had her lap top computer open, her reading glasses poised in her right hand, as she wore a long burgundy and white tweed jacket. Her two shades of brown hair fell elegantly layered and subtly curled to the top of her shoulder blades.
Bill Fleming, Dr. Hoffman’s defense attorney, sat at the right side of the table next to his client. Bill wore a dark grey suit as Dr. Hoffman wore a lighter shade of grey suit with one of his signature red ties. This time the tie had diagonal stripes. Another case was then called to be heard first, so this writer stepped out quickly to the rest room, leaving notebooks and hat propped on the end seats in the fourth row.
As I returned, Bill Fleming and Dr. Hoffman had sat down directly behind me. I said good morning to Bill Fleming and to Dr. Hoffman as I sat back down. Bill acknowledged me but Sim Hoffman did not. I looked directly into Dr. Hoffman’s face. He is handsome at 66 years of age, has full brown and grey hair, and has blood shot eyes. He appears muted, lifeless, not able to respond or interact. He is now always completely silent. He was not this way at his preliminary hearing in September of 2015. He would type on his cell phone constantly and would reply when spoken to. He even gave me his email address at that time.
Judge King called Hoffman’s case so Bill Fleming and Dr. Hoffman returned to their side of the table before the bench. Shaddi had not moved.
Judge King expressed he was resuming the 995 motion from the conversation from the last court appearance. He wants further arguments on some counts. He wants to know when Dr. Hoffman performed the services but the services were not medically necessary. This is where, he said, he is having an issue.
Judge King: I have no problem where the defendant submits a claim where services were not performed. Or where rendered but by a code of a different treatment. I have no issue (here of) being a false claim. (I have) no issue of medically necessary but no treatment. But it’s when a claim is submitted, work was done, paid, and now the prosecution says not medically necessary. That’s where the court is asking advocacy from the parties. There needs to be a claim, the claim has to be false, and defendant had to know the claim was false.
The judge took Count 4 as an example. He said that’s where it first comes up.
Judge King: Show me, where is the claim and where it is false? The issue I have is where claims are submitted in this category. Does it claim of medically necessary? Or is it assumed by the industry?
Four women in different locations now appeared in the court room audience gallery, seemingly from other cases to be heard coming up. Before, I had been all alone. I wondered if anyone had come to hear Hoffman. I concluded there was no one pertaining to Hoffman except for myself.
The judge exhorted that the preliminary hearing exhibits are voluminous. He complained that it took him and his clerks 10 minutes to find the exhibit that goes with Count 4. He asked if it was available electronically.
Shaddi replied that, indeed, the exhibits are available electronically and that she had offered it to the court. The judge asked if she could direct him to 7, 7a, 7b.
Judge King: If you could just direct me to the documents that are false!
The bailiffs dropped down a projector screen and Ms. Kamiabipour spent some time getting the court system to work with her lap top computer. She found exhibit 7, submitted by Dr. Hoffman’s Better Sleeping Medical Center.
Shaddi Kamiabipour: There are components in here that were never done.
Judge King: I have no problem with services not performed. But that’s not how it’s pled. I’m going to let you explain, in the counts where you have indicated. Compare count 4 to count 6.
The judge pointed out to Shaddi that, to him, the language that she put in count 6 was confusing.
Judge King: I see a difference between count 4 and count 6 in the way it’s pled. In count 4, you don’t have that language. That’s confusing.
Shaddi explained that an expert, Dr. Michel Cramer-Bourneman, testified that with respect to polysomnography, it is not performed for diagnosing insomnia. For the single fiber EMGs billed, these were for services not rendered.
Judge King: Just tell me in number 7, what part of the claim is false?
Bill Fleming: Where is there in the testimony where any part of this claim is false?
Judge King: Count 4, exhibit 7. Gary H. What was false about this claim?
Shaddi Kamiabipour: All of it.
Judge King spoke of the 647 bates stamped document as the evidence of a false claim. 647, 648, 649.
Judge King: All of it you’re indicating is false.
Shaddi Kamiabipour: Yes.
Judge King: What is the evidence from the prelim?
Shaddi responded by stating there are a lot of witnesses that testified. An Elizabeth Stalk testified about the Better Sleeping Medical Center claims. There is significance in submitting a claim because on the back of the form there is a statement the medical professional must swear to asserting that the services are medically necessary.
But the judge asked if the back of the form was submitted to the magistrate at the preliminary hearing. Shaddi replied that it wasn’t. However, she pointed to the testimony of the witness.
Judge King: I want to at this point identify the witness. Was there a false claim? 11… 11… 2647….. that is the claim that serves as the basis. What is it about the claim that is false? So, it has a back page and that was presented to the magistrate?
Shaddi Kamiabipour: If the court can allow me to finish my sentence!
Judge King stated there was not going to be a ruling. He decided to go to supplemental briefing.
Judge King: The court is looking for specificity of the false claims: if you can refer to the prelim, the witness, and the page number. The corpus of a false claim.
He expressed that the court needs to get going and rule on the motion to dismiss.
Judge King: Is it an allegation that the work was not performed? Or was it performed but wasn’t medically necessary? I will give the defense a chance to respond. I want to know what is a false claim. My inquiry now is false claim. What evidence shows it was false? I want names of witnesses, page numbers of testimony.
Shaddi said she can do it. She requested four weeks to get it done. The judge gave her through December 14th, the close of business day. The defense has their deadline to file by January 11th 2019. The parties will come back to court on January 18th 2019 at 9:15 am and finish the 995 motion.
Dr. Hoffman was told by the court that his trial would start within 60 days from January 18th 2019. Judge King repeated once again, after numerous previous repetitions, his requirement of the prosecution.
Judge King: What are the false claims?
email@example.com; Lonce Lamonte, journalist