This is the fourteenth in a series of articles about addiction treatment pioneer Dr. Punyamurtula S. Kishore and his ongoing battle with the Commonwealth of Massachusetts, which shut down his fifty-two clinics in late 2011, dramatically increasing the state’s death tolls due to opioid addiction. Space forbids repeating the story developed in the first thirteen articles. Readers new to this story are urged to catch up before reading on (links/references are provided at the end of this article).
We have followed the deadly chaos being inflicted on the nation by its drug czar Michael Botticelli and his single-minded devotion to policies and treatments promoted under the false banner of “harm reduction.” Strategies to insulate these deadly policies from better alternatives (such as “harm avoidance” as achieved by Dr. Kishore’s sobriety maintenance programs) have been documented from multiple angles in this series, including the forced omission of such alternatives from clinical analysis (with the doctored results being heralded as objective science). Open scorn, ridicule, falsifications of the record, and malicious attacks can then operate freely in the misguided world of “drug policy” and have done so in the face of mounting death counts approaching the levels of a massacre.
Now, a new angle of attack against Dr. Kishore’s award-winning sobriety maintenance has been launched, a legal attack that directly threatens, at multiple levels, any attempts to put Dr. Kishore’s program back on the map. By leveraging a law written during the Civil War, the federal government and Commonwealth of Massachusetts have been mobilized as plaintiffs in a motion to triple the damages of the original plea bargain from $9.3 million to $27.9 million … plus attorney’s fees. As toxic as the politicizing of science and medicine are, the evil is compounded when the law acts as the brutal enforcer for the interests of Big Pharma.
“The Wicked Frame Mischief Using Law”
We open this section with the above allusion to Psalm 94:20 concerning how the law can be used to inflict damage upon a nation. As noted earlier in this series, when the plea bargain was forced upon Dr. Kishore, he was blocked from pleading no contest. The state wanted to structure the terms of their deal so as to satisfy their lust for vindication upon the embattled doctor. And now this circumstance has come back to roost. It provides a trigger by which the False Claims Act (31 U.S.C. §§ 3729), a federal law written in 1863 (and subsequently amended and mirrored in state statutes) could be unleashed on the doctor. A motion for default judgment1 against Dr. Kishore and his clinics was filed on February 19, 2016, asking Judge Denise J. Casper to triple the penalty to nearly $28 million.
There is some complexity in how this motion came to be, as the motion is being brought to the court on behalf of the federal and state governments by an individual known as a relator (which for our purposes can be considered as a whistleblower claiming knowledge of wrongdoing that’s not in the public domain). The relator in this case is one Maria Perreault, a former employee at Dr. Kishore’s clinic in Quincy, Massachusetts. Her attorney filed the original motion2 six years earlier, on February 12, 2010. By early 2013 the court had effectively said “Let’s wait and see how the Kishore trial turns out before this motion goes forward” by dismissing Perreault’s action “without prejudice.” So this motion waited in the wings for the chance to charge back into the field of play. And that opportunity has now come.
We will want to examine several key aspects of this motion that will help frame it in reference to matters of law, matters of public policy, matters of medicine, and matters of state force. But we must first clear the air by answering the very serious charges alleged in this motion (both in its original 2010 form and in its reborn form in 2016). These old charges have been reasserted with renewed force because the new motion builds upon the claim that the state has proven the charges against Dr. Kishore to the tune of $9.3 million in fraudulent billing. So we should pit the assertions made in this rehashed motion against the assertions made by the lead prosecutor to the judge about this very case.
Whistleblower versus Lead Prosecutor
We tend to credit whistleblowers on the grounds that it often takes some courage to expose crime in your own organization. The theory is, nobody becomes a whistleblower for the wrong reasons, and this principle does generally hold. But there are exceptions to this rule, and the only way to identify them as such is to put the whistleblower’s allegations (often presented as compelling first-hand knowledge) to the test. If the whistleblower’s allegations hold water, then we should see them being put to use by the Attorney General’s office in their prosecution of the defendant. We would not expect to see the lead prosecutor backpedaling on assertions central to the whistleblower’s filings.
The resurrected motion by Ms. Perreault’s attorney summarizes the allegations as “(1) paying kickbacks to sober homes and other providers for referring clients/patients to PMAI clinics for medical services; (2) paying kickbacks to get patients on Vivitrol, and putting patients at risk by administering Vivitrol when not medically necessary or indicated; and (3) billing fraud and misconduct.” These charges are “documented” in sordid detail in the 35-page original motion. Were one to read these allegations first, one would be inexorably led to conclude that Dr. Kishore was an outright criminal. It doesn’t seem possible that such reputedly first-hand knowledge, presented so authoritatively, could possibly be rebutted.
And yet, the principle of Proverbs 18:17 always applies: the first one to present his case seems right, until another comes and cross-examines him. Moreover, we have the benefit of not having to default to an inconclusive he said/she said standoff between Dr. Kishore and Ms. Perreault on these renewed charges. We have a more decisive exchange that settles these legal questions: Judge Locke’s verbal interrogation of the lead prosecutor in the Kishore case, Nancy Maroney, in early 2014 in open court:
Judge Locke: Ms. Maroney, did you do any “forensic accounting” of Kishore’s income?
Nancy Maroney: No.
Judge Locke: Does Kishore have any bank accounts in the Cayman Islands or offshore?
Nancy Maroney: No.
Judge Locke: Did you discover any urine drug tests that were billed for and paid for by Medicaid that were not actually done?
Nancy Maroney: No.
Judge Locke: Can you substantiate that Kishore made $100 profit per urine test?
Nancy Maroney: No.
It should come as no surprise that Dr. Kishore’s clinics didn’t make $100 profit per urine test when the average billing per test was $76. In the real world, profit cannot exceed income. The stringency of mathematical law compelled Maroney to answer No to the judge’s question.
More tellingly, when questioned by Judge Locke, Nancy Maroney conceded that Dr. Kishore’s testing met the standards of care. So the judge learned that there was no fake billing, no fraud, and no failure to meet standards of care. Some observers believe that these admitted weaknesses and deficiencies in the state’s case against Dr. Kishore might have prompted Ms. Maroney’s sudden departure from the Attorney General’s office in April, 2014. To this day, the motive behind her surprise resignation3 remains a matter of speculation.
The takeaway here is a simple one: the lead prosecutor in the Kishore case, in open court, essentially discredited the primary allegations reiterated in the motion filed by the purported whistleblower.
However, Nancy Maroney never touched on whistleblower Perreault’s second point regarding Vivitrol, something we will discuss below because it is important: it creates a dangerous precedent to use legal motions to contaminate the practice of medicine. This 2010 charge is repeated in 2016 because Perreault’s attorney still sees it as a weighty indictment against Dr. Kishore and against the manufacturer of Vivitrol. If you’re seeking nearly $28 million from the judge, your defamation of the target apparently involves total war: throw enough at the wall and something might stick.
Given the concessions made by Nancy Maroney to Judge Locke, the question then became, Why is Dr. Kishore still scheduled to go on trial? We examine these sticking points before dealing with this motion’s condemnations of Vivitrol.
The Gist of the Case
From one point of view, what we’re about to review is moot, for these points and counterpoints never went to trial. Nonetheless, we’d be the poorer for not knowing the grounds for the state’s push toward a full trial, and would be deprived of context for the current legal attack.
Ms. Maroney made these issues known to the court when Judge Locke asked her that, given her prior concessions, what were the exact points of contention between the Commonwealth and Dr. Kishore? She mentioned two to the judge: over-testing and testing without a doctor-patient relationship.
In regard to the charge of over-testing, it must be noted that there are two kinds of testing: deterrence testing and detection testing. Ms. Maroney is referring to deterrence testing, which is done on suspicion only and thus used on job sites, not treatment programs. But Dr. Kishore’s clinics used detection testing, as explained by expert witness Dr. William McAuliffe in his exposition of current NIH medical papers on the topic.4 McAuliffe quotes that paper and explains its significance to Dr. Kishore’s work:
“With establishment of this clinic, the practice moved away from deterrence testing (random UDTs) to detection testing (routine and random UDTs). Detection testing is designed to improve diagnoses and to guide appropriate treatment or treatment modification. The rate of patient retention by the practice increased after the CARE clinic was established.”
Thus, there is both the frequency and the pattern of testing that can be justified. You can show that your approach, detection testing, has been shown to have positive effects on outcomes and has a legitimate clinical goal.5
On the matter of testing without a doctor-patient relationship, Ms. Maroney apparently did not keep up with the laws being passed in her own state, for then-state drug czar Michael Botticelli (now our national drug czar) had ordered the State Legislature to outlaw this requirement … which it did several months earlier. The new requirements are found in the Governing Documents for Drug Testing in Massachusetts,6which Ms. Maroney evidently did not consult prior to answering Judge Locke’s questions.
The state’s case against Dr. Kishore’s clinics then rested entirely on co-location (which under ObamaCare is actually recommended,7 if not in fact mandated) and co-employment. Dr. Kishore has noted that both co-employment and co-location are permitted under the Safe Harbor provisions that his clinics assiduously followed.8
The upshot is, none of this crucial information is incorporated in the renewed motion to triple the alleged restitution Dr. Kishore supposedly owes from $9.3 million to $27.9 million. The plea bargain forced upon Dr. Kishore is being used to rewrite this history, and triple the damages. How that was to be inflicted on Dr. Kishore makes for an even more sordid tale.
Bad News and Good News and Bad News Again
Helpful fellow that he is, Ms. Perreault’s attorney prepared a two-page document for the judge to sign: a proposed default judgment ordering Dr. Kishore and his long-defunct clinical practices to pay $27,900,000.00 plus attorneys fees of $227,769.81 plus post-judgment interest at a rate to be determined by the judge. Assume an interest rate of 1% per month: that’s over $280,000 a month in interest that would begin to accumulate had the judge signed this document in February 2016.
This attorney argued that neither Dr. Kishore nor his attorneys responded in a timely fashion to Ms. Perreault’s motion to reopen her case on December 29, 2015. Of course, Dr. Kishore’s original trial attorneys had fled the scene, and there was no money left to hire substitute counsel. The doctor had some limited legal assistance on a pro bono basis from several very dedicated attorneys, but nobody factored in the oppressive situation marking Dr. Kishore’s release from state custody the very same month that this triple-damages motion was filed.
Those following this series of articles know that cleaning the streets of Boston (as dictated by the state to the doctor) doesn’t leave much time to act as your own attorney. The proposed default judgment was tantamount to an end run around Dr. Kishore, to inflict massive damage and sink him further when he had been rendered unable to respond.
Apparently, Judge Denise J. Casper was unwilling to blindside defendant Kishore on such short notice. The good news (such as it was) came on April 1, 2016, when the judge ordered counsel for plaintiff Perreault to properly serve Dr. Kishore and his defunct clinical practice “on or before April 15, 2016,” restarting the clock and allowing Dr. Kishore (and whatever legal help he might muster) to reply by May 15, 2016. A return to the grim prospect of the judge signing the original default judgment is still possible: we were unable to ascertain the status before press time.
So the blow was diverted briefly by the judge, but may yet fall. How many streets do you have to sweep to pay just the $280,000 monthly interest on that pending judgment?
Net Impact of a Default Judgment
There is, of course, the not-so-small matter of the Revise & Revoke Order that Dr. Kishore had filed while in custody, which seeks to reverse the effects of the plea bargain (as explained in earlier articles in this series). If that legal action in favor of Dr. Kishore is successful, it will set up a conflict in the current triple-damages motion, which is based on the assertion that $9.3 million “is the amount of money that the Commonwealth proved (in the criminal case)” was fraudulently paid to Dr. Kishore. What would retroactively reducing that original amount (arguably down to zero) mean if these two jurisdictions collide over the facts of the case? One judge could be entering a tripled default judgment the same day another is removing the penalty entirely.
The federal False Claims Act, which inflicts treble damages even if there had been no intent to make a false claim, is a very different kind of beast in respect to law. Its grossly punitive terms conjure up a deterrent effect designed to make an example of a malefactor. By burying someone like Dr. Kishore under an even larger mountain of ever-increasing debt, such a judgment would forever block any and all attempts to resuscitate his clinics and reverse the increasing death toll in Massachusetts. No sane investor would capitalize a project that’s $30 million in the hole before it even starts.
And all of this despite the fact that the key points upon which Ms. Perreault’s motion are based were discredited in open court by the state’s lead prosecutor! The undisclosed downside of the plea bargain has now appeared in its most malicious form.
Perhaps, you might argue, the attorney filing for that massive default judgment was simply unaware that Dr. Kishore’s attorneys had dropped off the map and were thus unavailable to respond. You’d be mistaken. The attorney openly asserts that his motion to reopen Perreault’s case was granted on December 29, 2015 (§10), and that the Court had granted a motion for the Defendants’ attorneys to withdraw from Dr. Kishore’s case on the exact same day (§12). He even provides the pertinent document numbers to back up his declarations. So he knew full well Dr. Kishore had no attorney available to respond when he asserted that “Defendants failed to plead or otherwise defend this action, and the Relator is entitled to judgment by default against Defendants.” He hoped to win the legal lotto by forfeit.
It’s one thing for Justice to be blind, but to handcuff and gag Her is something else entirely. In circumstances like these, we are facing the kind of moral catastrophe depicted in Isaiah 59:14: “And judgment is turned away backward, and justice standeth afar off: for truth is fallen in the street, and equity cannot enter.”
The poverty inflicted on Dr. Kishore by the Commonwealth could only worsen a situation where you only get the justice you can afford. Consequently, basic human decency and compassion have forced me out of the role of journalist three times, by my providing financial assistance to replace the bald tires on his car (so it could be driven legally), making a payment on the storage costs for his medical records (where the only proof of his achievement resides), etc. While Dr. Kishore has weathered blow after blow, the greater damage has engulfed the citizenry afflicted with today’s deadly status quo drug policies … which brings us to the subject of Vivitrol.
Targeting Drug Treatments Using Legal Proceedings
Should a judge ever sign the Perreault motion for a default judgment, part of its evidentiary basis is its condemnation of (1) Dr. Kishore’s use of non-narcotic Vivitrol and (2) the company that manufactures it. Readers who’ve followed the preceding thirteen articles in this series know that Dr. Kishore pioneered the use of Vivitrol well after he had already achieved the highest one-year sobriety rates in addiction treatment (37% sobriety after one year, first achieved in 1994, compared to status quo sobriety rates still fluctuating between 1% and 5%). The addition of Vivitrol to the treatment matrix in conjunction with further refinements helped push that success rate up between 50% and 60% by 2011. Dr. Kishore’s sobriety maintenance approach (the so-called Massachusetts Model) achieved these stunning numbers without using substitute narcotics like Suboxone® or methadone.
This new legal motion for default judgment, as noted above, includes allegations of Dr. Kishore “paying kickbacks to get patients on Vivitrol, and putting patients at risk by administering Vivitrol to patients when not medically necessary or indicated.” The original 2010 filings by Perreault’s attorney are even more scornful in their denunciations:
This façade of good works masks a business empire wholly and single-mindedly devoted to maximizing revenues for Dr. Kishore and Defendants, primarily by generating excessive, unnecessary and fraudulent billings to MassHealth and other public and private health insurers.
Defendants exhibit an utter disregard for patient welfare, by among other things strong-arming clients into submitting to receiving monthly injections of Vivitrol, a sobriety medication, for which Defendants receive handsome compensation from MassHealth and other insurers. Defendants attempt to get as many sober house residents as possible on this medication, regardless of their particular medical condition, despite the fact that the drug can be dangerous or even fatal if improperly prescribed or administered. Relator also believes the manufacturer and/or marketer of Vivitrol provided unlawful incentives to Defendants to increase sales of the drug.9
We again see the Whistleblower Effect influencing our reception of such statements. Surely someone with inside knowledge of Dr. Kishore’s clinics can be trusted to make such apparently authoritative statements like these, we think. But if you’ve followed this series of articles from the beginning, you know there’s something very wrong with these accusations.
For someone who worked at Dr. Kishore’s sobriety maintenance clinics, Ms. Perreault seems to have little understanding of what sobriety maintenance entails, and how it compares to conventional treatment programs, especially in terms of safety. We repeat that crucial truth here: not a single one of Dr. Kishore’s 250,000 patients died while under his care. He had a perfect track record in a field of medicine where such a thing is so rare that many doctors avoid the field entirely. His clinics operated for another year and a halfafter Perreault’s allegations while maintaining that perfect safety record and achieving ever-improving results for the patients. The state’s jailing of Dr. Kishore brought everything crashing down—and this is where thereal danger and risk of Vivitrol was revealed.
For it was the Commonwealth of Massachusetts that deprived many of Dr. Kishore’s patients of their source for getting their monthly Vivitrol shots by jailing their doctor. Despite horrendous bias in the news stories of Fall 2011 that attempted to lay the blame on Dr. Kishore for daring to keep his patients sober with Vivitrol rather than strung out on methadone, this one pesky fact kept seeping through the media rhetoric: it is the absence of Vivitrol that was creating risk, not its administration.
In respect to Ms. Perreault’s motion and its attempted condemnation of Vivitrol, Dr. Kishore’s response was straightforward:
Vivitrol became a victim of this thing. We published on it, we presented on it, and we trained doctors nationally on how to use it properly.10 We did not prescribe it indiscriminately or force it on people.
The old saying bears repeating, that the pioneer is the guy with an arrow in his back. Dr. Kishore literally pioneered the use of Vivitrol for opioid addiction, as the medication had been intended for the treatment of alcoholism. Ms. Perreault was on-hand at the beginning of this revolution and rather than embrace it, she chose to attack it and discredit it. You will find no mention of sobriety success rates in her allegations. Like the nation’s drug czar, she suppresses facts inconsistent with her agenda and its $27.9 million payoff. In so doing, she’s not in good company.
So contrived is this attack on Vivitrol that we read the allegation (§69) that “Defendants failed to screen or monitor patients receiving Vivitrol to guard against dangerous side effects.” But what is the primary complaint against Dr. Kishore? Excessive testing and screening! But what judge is going to walk through this morass of rhetoric? Unfortunately, most judges will probably defer to consensus-based thinking, or perhaps to what the nation’s drug czar says.
For everything Dr. Kishore’s clinics did was tailored to their individual patients, including frequency of drug testing (as proven in earlier articles in this series). The same is true for Vivitrol and who received it and who didn’t. Each patient presents differently and has a story of his or her own. A doctor’s job is to see patients as individuals, and this is precisely why Dr. Kishore’s clinical successes were so stunning: the individual component was always front and center. Review the first four articles and the thirteenth article in this series to reacquaint yourself with this defining aspect of the doctor’s efforts.
Bad Law = Bad Medicine
The attempt to levy triple damages against Christian physician Punyamurtula S. Kishore is premised on the three basic categories laid out in the renewed motion. We’ve rehearsed how thefirst andthird categories (dealing with legal charges) were nullified by the lead prosecutor in open court. However, the judge hearing this motion will go by the documents in front of her, not by courtroom discussions occurring elsewhere two years earlier. This judge likely is unaware of Dr. Kishore’s motion to Revise & Revoke, which makes for a murky future should conflicting judgments come forth.
We’ve spent considerable ink on the second category raised in that motion, concerning Vivitrol. Why was that important? Because in a very real sense, the attorney who drafted those clauses in 2010 against Vivitrol and Dr. Kishore’s use of it was ahead of the curve. The politicization of drug policy has declared the quest for sobriety to be politically incorrect. The nation’s drug czar could easily have drafted that propagandistic condemnation of Vivitrol (which, one must remember, forms only one component of Dr. Kishore’s sobriety maintenance program). When you’re on the harm reduction bandwagon like drug czar Michael Botticelli is, harm avoidance alternatives must be kept at bay using all available force.
In the quest to re-sink Dr. Kishore, Ms. Perreault’s attorney has, knowingly or not, acted as a surrogate for the nation’s drug czar. There is some significance in the fact that the first plaintiff listed on his motion is the United States of America—the federal government. Further, the drug czar’s current reign (marked not by success but by untold snowballing carnage across all sectors of society) supports the hegemony of substitute narcotics (methadone and Suboxone) to the exclusion of alternatives, particularly sobriety-based alternatives. We’re told that it’s better to reduce harm than avoid it altogether—except we’re not reducing harm either, as obituaries and news headlines are pointing out with increasing frequency. The lie that sobriety kills was itself slain on the altar of Dr. Kishore’s perfect track record—which is why it’s suppressed both at the national level and in these legal motions.
True, Ms. Perreault’s attorney, who shall go nameless at this time, may have written up his allegations against Dr. Kishore’s use of Vivitrol not knowing the implications, focusing entirely on his headlong quest to squeeze $27.9 million out of Dr. Kishore’s empty wallet. But because that attorney is openly leveraging a federal law that condemns you even if you’ve acted unknowingly, Matthew 7:2 seems to apply: “For with what judgment ye judge, ye shall be judged; and with what measure ye mete, it shall be measured to you again.”
NOTE: Readers so inclined can send assistance to Dr. Kishore at: Dr. Punyamurtula S. Kishore, 535 Clinton Road, Chestnut Hill, MA 02467.
First 13 Articles in This Series:
1. United States District Court, District of Massachusetts, Case No.: 1:10-cv-10255-DJC. Plaintiffs are listed as UNITED STATES OF AMERICA and the COMMONWEALTH of MASSACHUSETTS. Ex rel. MARIA PERREAULT.
2. The original 2010 motion was filed as a qui tam complaint, roughly equating to her filing on behalf of the federal and state governments.
3. COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CRIMINAL NOS; SUCR2013- 11212; 11213 COMMONWEALTH v. PUNYAMURTULA S. KISHORE PREVENTIVE MEDICINE ASSOCIATES, INC. NOTICE OF WITHDRAWAL OF APPEARANCE I, Nancy E. Maroney, hereby provide notice to the Court and the parties that I withdraw my appearance as prosecuting attorney in the above-captioned cases. My last day at the Office of the Attorney General will be April 4, 2014. Assistant Attorneys General from the Medicaid Fraud Division will file notices to appear and prosecute the above-captioned cases on behalf of the Commonwealth. Respectfully submitted For the Commonwealth, MARTHA COAKLEY ATTORNEY GENERAL Assistant Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 EXT 2661
5. From client to attorney email communication dated February 10, 2014. There is considerable room to doubt that Dr. Kishore’s attorneys knew what to do with the expert witness testimony they were provided. The attorneys’ conduct after burning through $4 million in insurance monies earmarked for Dr. Kishore’s defense has been discussed at length in earlier articles in this series.
7. http://www.naccho.org/topics/h... -- see page 45.
9. Original motion referenced in endnote one above, filed February 12, 2010. You might wonder what the “unlawful incentives” were that the manufacturer of Vivitrol used. The whistleblower tells us exactly what the manufacturer did that was so wicked: the company allegedly provided free samples of Vivitrol to Dr. Kishore’s clinics. Yet even this charge has been shown to be completely false!
10. Some of the details about when and when not to use Vivitrol were presented in the first five articles in this series.