January 17, 2021

The plaintiff in a West Virginia class-action lawsuit alleges that she, and putative class members, are individuals who were directed by Felix Brizuela, D.O. (“Brizuela”) to purchase immunogloblin (“IVIG”) from the defendants in Morgantown, West Virginia. IVIG is an intravenously administered blood product prepared by pooling immunoglobulins from the plasma of thousands of human donors.

The plaintiff alleges that Defendant I.g.G. employed an Executive Account Manager and Director of Sales to target Felix Brizuela, D.O., among other physicians, to achieve an increase in sales of IVIG and to increase the profits of AmerisourceBergen, US Bioservices, I.g.G, and IHS Acquisition. The plaintiff alleges that the defendants made payments to Felix Brizuela, D.O. to induce him to misdiagnose patients and wrongfully disclose sensitive, private, and protected medical information of the plaintiff and other putative class members for the purpose of increasing new-book sales of IVIG, which increased the defendants’ profits.

More specifically, the plaintiff alleges that Felix Brizuela, D.O. and Felix Brizuela, D.O., PLLC operated a neurology office in Morgantown, West Virginia, and that the defendants greatly incentivized the aggressive sale of IVIG, especially to new purchasers, because the defendants knew: (1) once a person is prescribed IVIG, the person will likely take IVIG infusions for the remainder of his/her natural life; (2) IVIG is expensive for the purchaser and lucrative for the defendants; and (3) the defendants devised an internal practice which enabled them to secretly under report and under pay bonus commissions on IVIG sales to bolster corporate profits. The plaintiff further alleges that the defendants charged high rates for the IVIG product and increased prices as the customer continued to purchase IVIG.

The plaintiff claims to have received infusions every two weeks at an initial charge of $8,758.29 for each infusion. The cost to the plaintiff was then raised to $9,126.28 and $10,450.44, respectively, for each infusion over a period of approximately twelve (12) months. The plaintiff alleges that the defendants so aggressively incentivized bonus commissions to its sales executives to book IVIG transactions that some sales executives earned an IVIG quarterly bonus in excess of $900,000.00, and that sales executives received a higher bonus commission percentage for the first six months of every new-book IVIG transaction.

The plaintiff alleges that on April 3, 2012,  the defendants began making payments to Felix Brizuela, D.O., that were unlawful, wrongful, violated the defendants’ written policies, violated ethical standards, and placed the health, safety, and wellbeing of the plaintiff and putative class members at risk. The payments made by the defendants to Brizuela continued until March 19, 2015. The plaintiff alleges that Brizuela performed no services for the defendants to earn the payments made to him other than increasing the number of new-book IVIG transactions. While the defendants paid Felix Brizuela, D.O. to obtain new-book IVIG transactions, Brizuela became one of the highest volume IVIG prescribing practitioners in the United States as measured by data from the Centers for Medicare and Medicaid Services (“CMS”). During the approximate 26-month period the defendants made payments to Felix Brizuela, D.O., the defendants obtained approximately 65 new-book IVIG transaction accounts through Brizuela. The defendants also obtained numerous additional new referrals from Brizuela during that same period for whom the defendants attempted to obtain pre-authorization payment approval.

The plaintiff alleges that neither she, nor the putative class members, had CIPD, the medical condition diagnosed to trigger the sale of IVIG. The plaintiff alleges that the defendants knew Felix Brizuela, D.O. was making CIDP diagnoses to trigger the sale of IVIG at an incident rate exponentially higher than any rate published in peer review studies, higher than any other prescribers, and that Brizuela’s documentation in the possession of the defendants did not support new-book IVIG transactions. The plaintiff further alleges that Defendants knew the health, safety, and wellbeing of Plaintiff and punitive class members were at risk because the defendants were making improper payments to obtain new-book IVIG transactions through Brizuela.

The defendants filed a motion to dismiss the plaintiff’s claims, which the trial court denied on November 2, 2020, holding: “Plaintiff does not allege violations of the FCA or causes of action under the Stark Act or Anti-Kickback Law as grounds for recovery. Rather, she brings a common law negligence claim and claim for personal injuries related to Defendants’ conduct in providing wrongful, substantial assistance, and encouragement to Felix Brizuela, D.O. to diagnose CIDP and increase Defendants’ new-book IVIG transactions at an increased profit to Defendants. Plaintiff alleged that Defendants paid Brizuela from April 3, 2012 to March 19, 2015, in exchange for increasing Defendants’ number of new-book IVIG transactions. Given the allegations, dismissal of Counts I and II because the Stark Act and Anti-Kickback Law prohibit any and all private claims is not warranted … The Amended Complaint contains sufficient facts to support a negligence claim. Plaintiff alleged affirmative conduct by Defendants in making payments to Felix Brizuela, D.O. to increase IVIG transactions, and in concealing from patients information regarding the payments and the increased number of CIPD diagnoses in the geographic location … Plaintiff alleges a concert of action by Defendants to provide wrongful, substantial assistance and encouragement to Felix Brizuela, D.O., which Defendants foreseeably knew would cause harm. Construing the Amended Complaint in the light most favorable to the Plaintiff, as it must, the Court finds that Plaintiff has alleged Defendants knew of each other’s tortious conduct and provided substantial assistance or encouragement of such conduct for which Defendants may be liable … The alleged result of the conspiracy was that Plaintiff and punitive class members were diagnosed with CIDP in record numbers and referred for IVIG infusions they believed to be necessary, as Brizuela became one of the highest volume IVIG prescribers in the United States. Plaintiff has alleged sufficient facts to state a claim for civil conspiracy. Defendants offer no binding authority that would prohibit affiliated companies from being held liable for civil conspiracy where the alleged conspiracy involves a participant outside the companies … Plaintiff has stated a plausible claim for fraudulent concealment which is all the Rule 12(b)(6) threshold requires and dismissal of Count IV is not warranted … Plaintiff alleged that Defendants were unjustly enriched by their conduct and have failed to reimburse Plaintiff and putative class members for their unjust enrichment. Plaintiff alleged sufficient facts to state a plausible claim for unjust enrichment and dismissal of Count V under Rule 12(b)(6) is improper … Because West Virginia recognizes a cause of action independent from HIPAA for the improper disclosure of private medical information, the allegations of the Amended Complaint state a plausible claim for recovery. Dismissal of Count VI is not warranted … Defendants should outline for Plaintiff the health care services they provided Plaintiff within the meaning of the MPLA such that a pre-suit notification was required, and Plaintiff should seek leave to amend the claims so that they may be addressed on the merits.”

Source Post v. AmerisourceBergen Corporation, Civil Action No. 1:19-CV-73.

If you or a loved one may have been injured as a result of medical negligence in West Virginia or in another U.S. state, you should promptly consult with a West Virginia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Click here to visit our website or telephone us on our toll-free line in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you with your medical malpractice claim.

Turn to us when you don’t know where to turn.