Feds now investigating Biloxi doctor, son also embroiled in Coast pharmacy fraud scheme
Sun Herald (Biloxi, MS)
Mar. 1—A judge has halted proceedings in a whistleblower lawsuit involving Garden's Pharmacy because two of the accused — a Biloxi doctor and his son — are also targets in an ongoing criminal investigation involving fraud, according to records obtained by the Sun Herald.
Dr. Brian Tsang, and his son, Albert Tsang, asked for the delay without any objection from the U.S. Attorney's Office and a federal prosecutor assigned to the case.
A judge has also granted the Tsangs' request to restrict public access to documents filed in the civil case.
Attorneys for the Tsangs said the delay is necessary because they are "subjects/targets of a parallel federal criminal investigation involving the same or identical issues" outlined in the lawsuit.
The civil suit accuses the now-closed Ocean Springs pharmacy, through deceased Garden's pharmacist Clark Levi, of submitting fraudulent bills to Medicare and the private military insurer, TRICARE, for costly compound drugs covered under the insurance programs.
The suit alleges Garden's submitted fraudulent bills to federal insurers and the sales agent, Albert Tsang, received sale commissions, or "kickbacks" for allegedly referring his father, Dr. Brian Tsang, to the Ocean Springs pharmacy to fill the prescriptions.
The Sun Herald reached out to attorneys for the Tsangs but none responded to requests for comments
"This case will remain stayed and administratively closed until either party moves to lift the stay and re-open the case after the criminal investigation and the related criminal proceedings, if any, against Albert Tsang and Brian Tsang are concluded," Judge Judge John C. Gargiulo said in a ruling.
Pharmacist resigned amid "questionable business practices'
Former Garden's pharmacy manager Robyn Turner filed the whistleblower federal lawsuit but died in 2019. Her estate is pursuing the case.
Clark Levi died in car accident and is not named as a defendant in the pending litigation.
Though the federal government so far has declined to intervene in the whistleblower lawsuit, the prosecutors have reserved the right to do so at a later date. This month, the U.S. Attorney's Office assigned a new federal prosecutor to the case. The new prosecutor, Assistant U.S. Attorney Deidre L. Colson, formerly worked as a federal prosecutor in the southern district of Alabama and primarily prosecuted health care fraud cases.
The lawsuit says Albert Tsang, of D'Iberville, worked as a "one person sales team" and his only client was his father, a pain-management doctor who runs PainStop Spine Clinic in Biloxi.
Turner suspected criminal wrongdoing shortly after she went to work at Garden's in February 2013, then became pharmacy manager. She resigned in February 2014 due to what what she described as "questionable business practices."
According to the lawsuit, Turner found that sale teams left prescription pads with doctors for the expensive compound creams that Medicare or TRICARE covered. The sale teams would later follow up with Levi to check on their commissions, she said.
"Sales agents talked openly about their commission relationship as they reported weekly to one of the pharmacy's owners, Clark Levi, about the doctors the agents were targeting that week," the lawsuit says.
Levi oversaw the commission payments and talked openly about them, the suit says, though he was "particularly secretive about his dealings with Albert Tsang."
Levi later closed Garden's Pharmacy and reopened at the iconic Lovelace Drugs on Washington Avenue. After Levi's death, the property was put up for sale.
FBI agents had raided Lovelace Drugs prior to Levi's death.
Civil litigation delays and criminal charges
Turner filed her whistleblower lawsuit under seal in October 2018, giving the U.S. Justice Department time to decide if its civil division wanted to handle the case, as provided under the False Claims Act.
The allegations in Turner's civil lawsuit are similar to those in criminal cases that resulted in the largest TRICARE fraud prosecution in Mississippi history. The sweeping investigation has resulted in convictions against doctors, pharmacists, nurse practitioners, a pharmacy owner, a pharmaceutical salesperson and others.
Cliff Johnson, an attorney with the MacArthur Justice Center, told the Sun Herald it is not uncommon for a whistleblower lawsuit to be delayed if a similar criminal investigation is pending.
"The concern for defendants in that situation is that they would be subjected to extensive discovery (pretrial investigation documentation) in the civil matter that could be used against them in the criminal case," Johnson said.
"So, you can envision a situation where you are subjected to a seven-hour deposition (sworn testimony) in a civil case and the government uses the statements made in that deposition to bolster a criminal prosecution," he said. "Courts often recognize the gravity of that situation for that defendant and impose a stay of the civil matter"
If Turner's estate is successful in proving fraud against Gardens and the Tsangs, it would share in any recovery of TRICARE and Medicare funds, a feature of the whistleblower law.
"Knowing nothing about the case, my expectation is that the civil matter will go nowhere until the criminal case is concluded," Johnson said. "If the government is looking at the exact same conduct as in the whistleblower case and decided to move forward with a criminal prosecution, I will be shocked if they ultimately don't intervene in the whistleblower case."
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