AHF Claims Confidentiality to Try to Stifle Whistleblower Lawsuit

MIAMI, FL—Fresh from its loss in Los Angeles Superior Court regarding L.A. County's lawsuit against AIDS Healthcare Foundation for overbilling the county by over $5 million—a judge ruled that the county can proceed despite AHF's claims that the county was retaliating against it for intervening in the Measure B lawsuit—AHF has filed a countersuit against its three former managers who blew the whistle on the organization's alleged bribery of both patients and its own personnel to bring more patients into its clinics for HIV testing and treatment. However, rather than respond to the charges contained in the lawsuit filed by former managers Jack Carrel, Mauricio Ferrer and Shawn Lofts, AHF is claiming that the suit should be thrown out of court because those plaintiffs allegedly used and disclosed "highly confidential, individually-identifiable information about people who tested positive for HIV." It's the same tactic that AHF used against the Adult Industry Medical (AIM) Healthcare Foundation in 2010 when its attorney Brian Chase represented, free of charge, former actresses Desi and Elli Foxx regarding claims that AIM had improperly released their medical information to adult producers—even though both women signed voluntary disclosure forms to allow just such a release. That lawsuit was a major contributing factor to AIM's bankruptcy. The current AHF lawsuit, which was filed in the Southern District of Florida on April 24, appears to be an attempt to undercut the former managers' charges by depriving them of the information they'd gathered which, they said, showed that AHF had bribed patients first to get HIV tests at AHF clinics, and then bribed both patients and managers to get any HIV-positive patients into AIDS Healthcare facilities for treatment of their infections. The managers' complaint is referred to as a "Qui Tam complaint," meaning that if a court were to find that AHF had violated the bribery laws, the plaintiff managers, as "whistleblowers," would receive part of the proceeds from that lawsuit. The basis of AHF's current lawsuit is that all of the former managers, when employed by AHF, had signed employment agreements, received copies of AHF's Employee Handbook, were made aware of the organization's confidentiality policy, and signed confidentiality and other agreements whose purpose was to protect patient privacy. AHF charges that the former managers nonetheless used such confidential information about patients and about AHF's inner workings in their attempt to show that bribery had taken place, in violation of federal and state law. AHF also charged that the managers' attorneys had likewise gained confidential knowledge of some patients' health information thorugh their representation of the managers, and that those attorneys therefore had also violated the HIPAA privacy laws. In fact, the former managers had included patient information in their court filings, but up until filing their First Amended Complaint in early April, all of those court papers had been filed under seal, so that only court personnel and the parties involved would have access to such patient information. "At the time the First Amended Qui Tam Complaint was filed, and even before serving AHF with the First Amended Qui Tam Complaint, Defendants published a press release, which lead counsel (on information and belief, Leopold and the Cohen Firm) also published on its firm website, that contained a link to a highly-sensitive, confidential document with AHF patient HIV test results ('the Patient List.')," the AHF lawsuit charges. "This document, as described by Defendants, is a spreadsheet generated by AHF of HIV-positive patients that lists more than 840 patients who were linked to medical care. The Patient List contains around 680 unique medical record numbers, 27 telephone numbers, 2 street addresses, 37 email addresses, in whole or part, some with names included in the email address—all elements that must be removed in order to 'de-identify' protected health information in accordance with the law." Once made aware that the managers and their attorneys had possession of the Patient List (and other unspecified documents for which AHF also claims confidentiality), AHF demanded that they return the list to AHF, since as ex-employees, the former managers were not allowed to retain possession of the list. Of course, the Patient List forms the basis for many of the charges in the former managers' lawsuit, and in seeking its return, AHF is essentially trying to gut the managers' legal claims against the organization. "Through this Complaint," AHF's lawsuit pleads, "AHF seeks injunctive relief including an order (i) prohibiting Defendants from any use, disclosure or further publication of the Patient List, in its unredacted and redacted forms, and any and all other AHF highly-sensitive and confidential documents that, upon information and belief, Defendants improperly and illegally possess; (ii) prohibiting Defendants from altering, destroying, deleting or otherwise disposing of any hard drives, external-storage devices, electronic documents, or hard-copy documents that may contain information related to the Patient List (except as may be expressly ordered by this Court, pursuant to HIPAA destruction standards and verified by AHF); and (iii) demanding the return of the Patient List, in its unredacted and redacted form, and any and all other AHF highly-sensitive and confidential documents that, upon information and belief, Defendants improperly and illegally possess, to AHF, including the original and any copies thereof, including electronic- or hard-copies." [Emphasis added] See, if the former managers and their attorneys can't "use" the Patient List and the other documents, however they were obtained, in their lawsuit against AHF, it will be much more difficult if not impossible for the managers to prove that AHF bribed patients and its own personnel, and the documents' unavailability may even lead to a dismissal of the managers' lawsuit for lack of evidence. AVN will continue to follow this very interesting legal sparring as it continues to unfold. The complaint filed by AIDS Healthcare Foundation against its three former managers and their attorneys can be found here.