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A second doctor was accused of fraud last week in a federal lawsuit filed by the AHP Settlement Trust, the entity created to process claims related to the $3.75 billion fen-phen settlement. Attorneys Richard L. Scheff and Jeremy D. Mishkin of Montgomery, McCracken, Walker & Rhoads filed the suit against New York City cardiologist Richard L. Mueller alleging that he intentionally defrauded the trust by certifying medically unreasonable claims. The suit alleges that Mueller conspired with an unnamed law firm to submit fraudulent claims “in order to earn substantial additional fees being offered by the law firm in exchange for VHD [valvular heart disease] certifications.” The trust alleges that, as a result of Mueller’s actions, millions of dollars were paid to fen-phen claimants without VHD, while payment to legitimate claimants was delayed. In September, the trust filed a civil RICO suit against Dr. Linda Crouse, a Kansas City, Mo., cardiologist, alleging that she defrauded the trust by “certifying that thousands of [fen-phen] claimants had serious valvular heart disease when either she knew that they did not or had no reasonable basis for certifying that they did.” Crouse was first targeted by the trust last year when a team of lawyers from Wolf, Block, Schorr and Solis-Cohen successfully moved to block payment of all claims connected with two law firms and two of the doctors they had used. At the time, U.S. District Judge Harvey Bartle III said he was forced to issue an injunction because the settlement funds were set aside for “rightful claimants who suffered from Fen-Phen and not as a pot of gold for lawyers, physicians and non-qualifying claimants.” Under the 1999 settlement agreement, cardiologists and cardiothoracic surgeons were required to undertake specific procedures in order to certify the existence of VHD before signing off on the court-approved certification form, known as the Green Form. The steps include the use of an echocardiogram and the taking of a claimant’s medical history in order to rule out potential causes of VHD other than the use of fen-phen. In last week’s lawsuit, the trust alleges that Mueller acted contrary to his normal practices and controlling professional standards in his interpretation of echocardiograms by willfully capturing “misleading and mis-representative echocardiogram images intended to support false [VHD] diagnoses.” The suit also alleges that Mueller ceded his medical obligations to a law firm in a number of areas, such as relying on medical histories that had been supplied by the unnamed law firm and as to which he had no personal knowledge, and that he did so with full awareness that the settlement agreement called for cardiologists, not law firms, to diagnose VHD. Compensation was a motivating factor in the fraud, the suit alleges, noting that for each VHD certification, Mueller allegedly received an immediate payment of $500 over and above the $900 he received for interpreting the echocardiogram. The suit alleges that Mueller received another payment of $1,500 following compensation to the claimant, earning more than $1 million. Those supplemental payments, allegedly paid in exchange for certifications of VHD, “provided a powerful incentive for Dr. Mueller to commit fraud,” the suit alleges. The suit alleges that Mueller “conspired with the law firm to follow its ‘protocol’ and to take echocardiograms and measurements in a way that would make it difficult, if not impossible, for the trust to detect that the Green Form diagnosis lacked any reasonable medical support for a VHD certification.” Although the suit against Crouse included a RICO claim, the suit against Mueller does not. It alleges five claims — intentional misrepresentation and fraud; conspiracy to commit fraud; gross negligence; negligence; and unjust enrichment. Mueller’s lawyer, Wayne E. Cousin of Gordon & Silber in New York, could not be reached for comment on Friday.

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