At the end of April, a three-judge panel of the Fifth District Court of Appeals in Dallas ordered a malpractice lawsuit against the firm of Sommerman McCaffity Quesada & Geisler and Al Ellis, of counsel at the firm, to continue. The case against the attorneys had been thrown out last year by a Dallas District Court judge, and the Court of Appeal sent the case back to that court to continue.
Lawyers for qui tam case
This case is of interest because three of Sommerman McCaffity Quesada & Geisler partners, Andrew Sommerman, Tex Quesada and Sean McCaffity, currently represent qui tam whistleblower, Joshua Lafountain, in his TMFPA lawsuit against 71 Medicaid dental entities and dentists for which he has never worked.
Case alleges bad legal advice
Per the Court of Appeal decision, the malpractice case revolves around legal advice given to a family whose home burned to the ground in late 2009 in which the wife had died. The family had hired the Sommerman firm and Ellis to bring a product liability suit against the manufacturer of the clothes dryer in the home, which was apparently the cause of the blaze.
The Sommerman attorneys hired experts, but 11 days before trial, Ellis advised the family to settle for $800,000 of which his firm got 40% because, as he told them in an email, "we cannot win an appeal because no expert can testify as to the cause of the fire and without that we don't stand a chance. I wish it were different but unfortunately the law is not on our side."
After the settlement, to give themselves some peace over the tragedy, the family hired its own expert to find the cause of the blaze. The expert was able to determine that the cause was undeniably the gas valve of the dryer.
So afterwards, in 2017, the family brought the malpractice suit against the Sommerman firm and Ellis and asserted "claims of negligence, gross negligence, breach of fiduciary duty [later non-suited], and violation of the DTPA [Deceptive Trade Practices Act]."
Unfortunately, the husband passed away after the filing leaving the son and the parental estates to pursue the claims.
For full reference, please read the Court of Appeal's decision available for download below.
Motion in qui tam case to dismiss and sanction Sommerman attorneys
In the qui tam case which is currently before a judge of the Dallas District Court, as already reported by TDMR, lawyers for one of the defendant dentists has filed a motion asking the judge presiding over the case to dismiss it and sanction the whistleblower and his lawyers, the Sommerman partners mentioned previously as well as two lawyers from Passman & Jones.
The motion calls the qui tam lawsuit "groundless, brought in bad faith and for the purpose of harassment" because Lafountain's testimony under oath in a deposition given in April "contradicts and disproves allegations in his pleadings as well as representations previously made by Relator's counsel to the Court."
Specifically, the motion states:
- Relator does not currently have any evidence to support any TMFPA claim against any Defendant;
- Relator (and his counsel) filed this lawsuit without a good faith basis, in violation of Texas law;
- Relator is using this lawsuit as a tool to investigate theoretical claims, which is beyond the qui tam authority delegated by the Texas Legislature; and
- Relator's discovery requests are fishing expeditions prohibited by Texas law.
OAG refuses to dismiss case
Despite these glaring deficiencies, the Civil Medicaid Fraud Unit of the Office of the Attorney General, which has the power to dismiss such cases, refuses to do so.
The agency had even filed a brief with the court that "there is no provision of the TMFPA that requires the qui tam relator to have "independent" "direct" or "first-hand" or "insider" knowledge of any alleged unlawful conduct."
Based on this assertion, the Office of the Attorney General will support any qui tam lawsuit against any Medicaid provider, no matter how unfounded or ridiculous the allegations, if the relator can find a law firm with the ethics to pursue a "groundless, brought in bad faith and for the purpose of harassment" legal action.
Healthcare providers deserve better
Healthcare professionals deserve better treatment from their government.