A Lake County man has accused his former attorneys of mishandling Medicare fraud lawsuits he filed against CVS.
Richard J. Carmel, now represented by Edward T. Joyce & Associates P.C., filed a legal malpractice complaint June 22 in Cook County Circuit Court against Touhy, Touhy & Buehler, LLP, and related entities, as well as attorneys Paul Terrence Buehler, Daniel Kerry Touhy, and Timothy John Touhy.
According to the complaint, the defendant attorneys failed to file timely notices of appeal from final judgments in two qui tam fraud complaints they brought on Carmel’s behalf against CVS Caremark Corporation, CVS Pharmacy, Inc., and others in federal court in Chicago.
In qui tam actions, a plaintiff sues companies and other entities, ostensibly on behalf of a government or governmental agency, typically to collect back taxes or prosecute fraud. Plaintiffs and their attorneys can then collect a portion of any judgment the defendants are ordered to pay.
From 2013 to 2015, the complaint alleges, Buehler, Daniel and Timothy, on behalf of Touhy, Touhy & Buehler, told Carmel his lawyers were Touhy, Touhy & Buehler. However, Touhy, Touhy & Buehler’s limited liability partnership expired Dec. 9, 2011. The Touhy, Touhy & Buehler firm registered as a limited liability limited partnership with the state on May 17, 2017.
One complaint against CVS involved its ExtraBucks rewards program, which Carmel said violated Medicare policy because the pharmacy did not reveal nor pass on to the government the discount it gave him for filling prescriptions at CVS. Another concerned the 20 percent discount on non-pharmaceutical goods for customers who got flu shots at CVS. Again, he accused CVS of withholding information about the discount from Medicare. Carmel said Walgreens denied him enrollment in similar programs because he is a Medicare recipient.
Federal judge Elaine E. Bucklo consolidated the cases in 2015. CVS then moved to dismiss. Bucklo granted the dismissal on June 26, 2015, saying she did not have subject matter jurisdiction. Carmel said Buehler pledged to file a notice of appeal with the Seventh Circuit Court of Appeals in Chicago, which was due by July 27, 2015. Buehler and TT&B filed the ExtraBucks appeal July 28 and never filed a notice of appeal for the flu shot case. Carmel said Buehler acknowledged the late filing on Sept. 10, 2015.
Carmel argued Bucklo erred in her analysis and would have corrected the error had the Seventh Circuit remanded his complaints for further proceedings. He said Bucklo based her opinion on public disclosure requirements of the federal False Claims Act, but argued the alleged fraud — which also included violations of the federal Anti-Kickback Statute and Civil Monetary Penalties Act — only came to light because of his reading of his explanation of benefits forms.
According to the complaint, Buehler and TT&B were correct in the way they argued on Carmel’s behalf, saying that while the discount programs were widely known, the revelation of failure to disclose and pass on the money to Medicare were only evident in explanation of benefits forms that weren’t in the public domain.
Formal allegations in Carmel’s complaint against his former attorneys include legal malpractice against TT&B, Buehler Law and Buehler for failing to file a timely appeal for the ExtraBucks case and for failure to appeal the flu shot case, an Illinois Supreme Court liability complaint against Daniel and Timothy for the same shortcomings, and successor liability for the failure to appeal counts against the LLLP as well as Buehler Law, Touhy Law and Touhy Law Group.
Carmel said he is entitled to compensatory damages of at least $30,000 for each of the five counts.