IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL …...against Rose Radiology and, ultimately, as counsel for Relator Miller. 38. In what appeared to be a poorly veiled attempt to distance

Filing # 39538535 E-Filed 03/28/2016 04:31:38 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FORHILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION

ROSE RADIOLOGY CENTERS, INC., a Floridacorporation,

/

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, Rose Radiology Centers, Inc. ("Rose Radiology"), sues Defendants Barry A.

Cohen, PA. ("Cohen Law Finn") and Barry A. Cohen, individually ("Attomey Cohen")

(hereinafter, "Cohen Law Finn" and "Attorney Cohen" are collectively referred to as "Cohen")

and states:

PARTIES, JURISDICTION AND VENUE

l . This is an action for legal malpractice, breach of fiduciary duty, negligence and

damages in excess of $15,000.00, exclusive of interest, attorneys' fees, and costs.

2. Plaintiff, Rose Radiology, is a Florida corporation With its principal place of

business at 4133 Woodlands Parkway, Palm Harbor, Florida 34685.

3. Dr. Manuel Rose ("Dr. Rose"), at all times relevant hereto, is the owner, CEO,

and Medical Director of Rose Radiology, and to the extent that Dr. Rose undertook actions

individually, it was as an agent or representative of Rose Radiology.

4. Cohen Law Firm is a Florida Prof it Corporation With its principal place of

business at 201 E. Kennedy Boulevard, Suite 1950, Tampa, Florida 33602.

03/28/2016 4:31 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1

PlaintiffV.

BARRY A. COHEN, PA. andCASE NO.

BARRY A. COHEN, an individual,Defendants.

DIVISIONS

5. Attorney Cohen is an attorney who is authorized to practice law in the State of

Florida and who resides at 808 S. Rome Avenue, Tampa, Florida 33606.

6. Venue is proper before this Court pursuant to Chapter 47, Florida Statutes,

because, among other things, Rose Radiology's causes of action accrued in Hillsborough

County, Florida, Cohen Law Firm conducts business in Hillsborough County, Florida, and

Attorney Cohen resides in Hillsborough County, Florida.

GENERAL ALLEGATIONSATTORNEY COHEN'S REPUTATION AND ADVERTISING

7. Attorney Cohen has been in private practice in Tampa, Florida since 1970, and

the Cohen Law Firm has been operating in Tampa since 1975.

8. Attorney Cohen has handled a number of high profile cases in Tampa over his

legal career, and has no hesitation stating that he has "considerable experience with stopping

federal investigations." http://wwwtampalawlirm.com/tampa-legal-team/barry-a-cohen/, at 11

13.

9. Attorney Cohen is known to be very aggressive and successful in both the civil

and criminal arena. http://andelman.com/ARTICLES/bar1vcohen.html

10. Among other types of litigations, Cohen handles qui tam actions.

http://wwwtampalawlirm.com/practice/qui-tam-false-claims-act-or-whistleblower-actions/

11. Cohen advertises that "The Barry A. Cohen Legal Team is your best defense

against False Claims, qui tam, criminal defense, and commercial & civil litigation."

https2//Wwwgoogle.com/#q=bar1y+a+cohen+tampa

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RGSE RADIGLGGY SEEKS LEGAL ADVICE FRGM CGHEN

12. In late March 2013, Rose Radiology was served with a Department of Defense

subpoena ("DoD Subpoena") related to a qui Iam complaint -- USA., ex rel, Carlene Schimke v.

Rose Radiology Centers, Inc. ("Schimke Complaint").

13. The Schimke Complaint had been filed under seal in November 2012. At time of

service of the DoD Subpoena, Rose Radiology was unaware of the Schimke Complaint as it had

been previously filed under seal.

14. The Schimke Complaint was related to only Tricare reimbursements.

15. On April 6, 2013, Rose Radiology consulted With counsel to respond to the DoD

Subpoena.

16. At this time, Rose Radiology also determined that it Wanted to hire additional

counsel to assist With the response to the DoD Subpoena.

17. Based upon his reputation as an aggressive, creative and often successful attorney,

Rose Radiology identified Cohen as an attorney and law Finn that it Wanted to hire as counsel to

assist in its responses to the DoD Subpoena.

18. On April 17, 2013, Dr. Rose called Attorney Cohen at his office, Dr. Rose had a

brief two minute call With Attomey Cohen's assistant and left a message (With Dr. Rose's

business cell phone) requesting that Attomey Cohen return the call.

19. At 9:19 p.m. on April 17, 2013, Attorney Cohen returned Dr. Rose's phone call.

20. Dr. Rose spoke With Attomey Cohen for eighteen minutes and, during the call

("Confidential Conversation"), emphasized to Attorney Cohen that the conversation was highly

confidential and that he was consulting Attorney Cohen for the purposes, and With the intention,

3


of Rose Radiology's hiring Attorney Cohen as counsel for the purposes of responding to the

DoD Subpoena and any litigation related to the DoD Subpoena.

21. During the Confidential Conversation, Dr. Rose described the DoD Subpoena in

great detail.

22. During the Confidential Conversation, Attorney Cohen commented to Rose

Radiology that, based upon the DoD Subpoena, it sounded like a "Whistleblower" action was

pending.

23. During the Confidential Conversation, Attorney Cohen interviewed Dr. Rose and

asked very pointed and specific questions about Rose Radiology's business practices, some of`

Which had no relation whatsoever to the substance of` DOD Subpoena, including, but not limited

to advertising practices, distribution of` tickets to events, and probed into referral relationships

With other physicians.

24. During the Confidential Conversation, Attorney Cohen also asked Whether there

could be any allegations that Rose Radiology was in violation of` not only Tricare rules and/or

regulations, but also any Medicare or Medicaid rules and/or regulations.

25. During the Confidential Conversation, Attorney Cohen expressed surprise that

DOD Subpoena did not relate to Medicare or Medicaid reimbursements and requested that Dr.

Rose send him a copy of` the DoD Subpoena.

26. During the Confidential Conversation, Dr. Rose answered all questions posed by

Attorney Cohen in a fòrthright manner and elaborated on many areas of` Rose Radiology's

business practices, its employees, and certain documents responsive to the DoD Subpoena.

4


27. Dr. Rose communicated with the substance and detail during the Confidential

Conversation because Rose Radiology considered the communication with Cohen to be attorney-

client privileged.

28. Less than half-an-hour after the Confidential Conversation, Dr. Rose e-mailed

Attorney Cohen, stating:

Subject: Introduction/Thanks for calling back

From: [email protected]

Date: Wed, April 17, 2013 10:03 pm

To: [email protected]

Hi Barry,

Thanks for calling me back. I want to make sure this is your correct

email, before I forward any attachment [sic] of what we discussed

regarding a DoD subpoena.

Currently, I have legal representation, but I would value your opinion

as I believe in multiple opinions. Since you know my legal

councel,[sic] let's keep this confidential until we meet.

I look forward to meeting you in the next few weeks to learn about your

practice and let you know what has been done so far regarding the

issue

Contact me at your convenience so we can schedule a time to meet. Thank

you .

Manny Rose, MD

Medical Director and Owner

Rose Radiology Centers, Inc.

cell: 813-361-5921

29. Despite his intense questioning of Dr. Rose during the course of the Confidential

Conversation and stated interest in representing Rose Radiology in its response to the DoD

Subpoena, Attorney Cohen did not respond to Dr. Rose's e-mail or call him back.

30. Based upon the lack of response from Cohen, Rose Radiology assumed the lack

of response meant that Cohen was not interested in representing Rose Radiology, but Rose

Radiology still believed that the communications were protected by the attomey-client privilege.

5


31. Less than two months after the C onh denti al Conversation, a representative of a

New York law Finn - Milberg, LLP ("Milberg") -- began contacting former employees of Rose

Radiology in an effort of identify a relater that could file a qui Iam suit against Rose Radiology.

CUHEN USES ATTGRNEY-CLIENTPRWELBEGBED ~EN~F()RMATl~()N RECEI\7EB) FRUM RUSE RAEI()L()GY

TO FILE A LA'WsUH AGAINST RGSE Mnrorocxf

32. Subsequent to the Confidential Conversation, Rose Radiology was finally served

With theSchimke Complaint in August 2013.

33. Unbeknownst to Rose Radiology, six months after the Confidential Conversation,

Rose Radiology became a defendant in a second qui Iam complaint styled USA. ex rel Katrina

Miller v. Rose Radiology Centers, Inc. ("Miller Complaint").

34. The Miller Complaint was originally filed under seal.

35. On April 15, 2014, the A/Hller Complaint Was, for the first time, provided to Rose

Radiology's counsel by the United States Attorney's Office.

36. Upon receiving a copy of the A/Hller Complaint, Rose Radiology and Dr. Rose

were astonished to learn that the relater, Katrina Miller ("Relator Miller"), was represented by

the Cohen Law Firm.

37. Upon infonnation and belief, Cohen associated With Milberg to investigate claims

against Rose Radiology and, ultimately, as counsel for Relator Miller.

38. In what appeared to be a poorly veiled attempt to distance himself from the

Confidential Conversation, Attomey Cohen had his colleague Kevin Darken, Esq. sign theMiller

Complaint on behalf of the Cohen Law Firm.

39. Upon reading the allegations contained in the A/Hller Complaint, it became

apparent to Rose Radiology that many of the pointed questions Attomey Cohen asked of Dr.

6


Rose during the Confidential Conversation was not for the purposes of defending Rose

Radiology. Rather, the questions were for the purpose of obtaining inflonnation from Rose

Radiology to determine if there were other potential causes of action a relater could potentially

assert against Rose Radiology through a second qui Iam action.

40. The Schimke Complaint alleges that Rose Radiology presented false and

f`raudulent claims to the government in order to be reimbursed fòr diagnostic dye-contrasts scans

Without direct physician supervision and various radiological procedures on patients Without a

treating physician's prescription.

41. While the A/Hller Complaint contains only one cause of` action, its allegations stem

f`rom fàcts Which are very different f`rom the Schimke Complaint and are closely related to the

specific areas of` inquiry f r̀om Attorney Cohen Which arose during the Confidential

Communication - "flour separate schemes . . [l] kickbacks in the fònn of` discounts to certain

'preferred' physicians in exchange fòr those physicians' referrals, including Medicare referrals,

in violation of` the Anti-Kickback Statute ... [2] bill[ing] Medicare fòr radiology testing that was

not medically necessary and, thus, not eligible fòr reimbursement to Medicare [3]

perflorm[ing] services at fàcilities that were not enrolled in Medicare, and then fàlsely billing

Medicare fòr those services as though they had been perflonned at other fàcilities Which were

enrolled in Medicare, [and 4] p erflonn [ing] and f`raudulently bill[ing] Medicare fòr services

that were not ordered by beneficiaries' treating physicians, and Which are not medically

necessary."

42. Rose Radiology discussed many of` the topics contained in the Miller Complaint

With Attorney Cohen in response to his questions during the Confidential Communication.

7


43. Upon information and belief, Relator Miller was contacted about serving as a qui

Iam plaintiff very shortly after the Confidential Communication.

44. Upon infonnation and belief, Relator Miller then engaged Cohen and Milberg to

bring a qui Iam action against Rose Radiology.

45. Upon further information and belief, Cohen disclosed attorney-client privileged

infonnation he obtained during the Confidential Communication on at least two occasions - (l)

When Cohen associated With Milberg to investigate claims against Rose Radiology, and (2) While

Cohen was representing Relator Miller, as co-counsel With Milberg.

46. Based upon billing records provided by Milberg for its attorneys' fees claim

Which was never filed in the Miller proceeding, less than two months after the Confidential

Communication, on June 13, 2013, Milberg began billing for Work performed on behalf of

Relator Miller.

47. But those Milberg billing records do not reflect time entries for initial

consultations With Relator Miller.

48. Milberg's billing and timekeeping records begin in medias res, With Milberg

investigating Rose Radiology and drafting a qui Iam complaint.

49. Upon review of the A/Hller Complaint and learning of Cohen's representation of

Relator Miller despite having the Confidential Communications, Rose Radiology, through

counsel, contacted the Assistant United States Attomey ("AUSA").

50. During its communications with the AUSA, Rose Radiology discussed the

conflict that Cohen had regarding disclosure of attomey-client privileged communication and

using information he obtained in the Confidential Communication to develop and institute a qui

Iam action against Rose Radiology.

8


51. Shortly after that conversation, the AUSA contacted Milberg about Cohen's

conduct.

52. Milberg, understanding the gravity of Cohen's breach of confidence, immediately

contacted Cohen.

53. Milberg, the AUSA, and Cohen had more than a dozen communications regarding

the conflict issue and determining how to properly proceed.

54. During this internal investigation of Cohen's misconduct, Cohen admitted to the

AUSA that Attorney Cohen had spoken With Dr. Rose about the very same subject matters that

comprise the allegations of the Miller Complaint.

55. About one Week after being contacted by the AUSA, Cohen withdrew as counsel

for Katrina Miller.

56. After the withdrawal of` Cohen, theMiller Complaint settled.

57. Rose Radiology first learned of` its cause of` action against Cohen on or about

April 15, 2014, When the A/Hller Complaint was partially unsealed.

58. Rose Radiology has suffered significant damages as a result of` Cohen's legal

malpractice, breach of` fiduciary duty and negligence, to wit: having to retain and pay counsel to

defend the A/Hller Complaint, having to pay a substantial settlement amount to the United States

Government to resolve the A/Hller Complaint, and suffering damage to Rose Radiology's good

Will and reputation.

9


COUNT I LEGAL MALPRACTICE1

59. Rose Radiology incorporates and realleges paragraphs 1-58, as if fully set forth

herein.

60. Rose Radiology consulted Cohen for the purpose of obtaining legal advice,

opinions and representation.

61. Attorney Cohen acted as if he was interested in joining in the representation of

Rose Radiology and responding to the DoD Subpoena and defending what was later learned to

be the qui Iam action instituted by the Schimke Complaint.

62. Attorney Cohen interviewed Dr. Rose and conducted a pointed question-and-

answer-session about Rose Radiology's business practices.

63. Dr. Rose responded to all Attorney Cohen's questions because he believed that

the communication was privileged and confidential as Rose Radiology was seeking legal advice

and obtaining Cohen's legal services.

64. Cohen materially breached the duty to treat all communications as privileged.

65. Cohen also breached the duty not to use confidential information provided by a

potential client against that very same potential client.

66. Cohen used the information obtained during the Confidential Communication to

identify potential causes of action against Rose Radiology, associate another law Finn, obtain a

new relater, and file a qui Iam action against Rose Radiology.

1

Attorney Cohen's conduct violates Rules 4-1.6 and 4-l.l8(b), Rules Regulating the Florida Bar.

10


WHEREFORE, Plaintiff, Rose Radiology Centers, Inc., seeks entry of a judgment

against both the Defendants,

a) Finding that Cohen committed acts of legal malpractice, breached the

fiduciary duties they owed to Rose Radiology and were negligent in their

actions, all of Which directly and proximately caused Rose Radiology's

damages,

b) Awarding monetary damages sufficient to satisfy the losses sustained by

Rose Radiology, and

c) Granting such further relief as is necessary and just.

COUNT II BREACH OF FIDUCIARY DUTY

67. Rose Radiology incorporates and realleges paragraphs 1-58 as if fully set forth

herein.

68. Cohen had an attorney-client privileged and confidential relationship With Rose

Radiology.

69. Specifically, Rose Radiology provided highly sensitive infonnation during the

Confidential Communication and With the intent to reply upon Cohen to render legal opinions

and advice regarding the qui Iam litigation in Which Rose Radiology was involved.

70. Cohen breached the fiduciary duty it owed to Rose Radiology by disclosing that

infonnation to third parties and using that information to investigate and bring a new, separate

qui Iam action against Rose Radiology.

71. Cohen's breach of fiduciary duty is the direct and proximate cause of Rose

Radiology's damages.

11


WHEREFORE, Plaintiff, Rose Radiology Centers, Inc., seeks entry of a judgment against

both the Defendants,




damages,


Rose Radiology, and


COUNT III NEGLIGENCE

72. Rose Radiology incorporates and realleges paragraphs 1-58 as if fully set forth

herein.

73. Cohen owed a duty to Rose Radiology to keep all communications between Rose

Radiology and Cohen privileged and confidential.

74. Cohen also owed a duty to Rose Radiology not to use the information provided by

Rose Radiology against it.

75. Cohen breached the duty owed to Rose Radiology by disclosing the content of his

conversations With Rose Radiology to third parties.

76. Cohen further breached the duty owed to Rose Radiology by using the

infonnation provided by Rose Radiology to investigate and bring a new, separate qui Iam action

against Rose Radiology.

77. Cohen's breach of duty is the direct and proximate cause of Rose Radiology's

damages.

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WHEREFORE, Plaintiff, Rose Radiology Centers, Inc., seeks entry of a judgment

against both the Defendants,




damages,


Rose Radiology, and


JURY DEMAND

Plaintiff hereby requests trial by jury on all issues friable by jury.

Dated: March 28, 2016.

/s/Eric S. Adams

Eric S. Adams, Esq.Florida Bar No. 0090476

Mark P. Rankin, Esq.Florida Bar No. 0177970

4301 W. Boy Scout Blvd., Ste. 300

Tampa, FL 33607

Tel: 813-227-8166

Fax: 813-229-8901

nirankin@shutts . co1n

[email protected]

Attorneys for Plaintiff

TPADOCS 20795481 4

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Documents

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL …...against Rose Radiology and, ultimately, as counsel for Relator Miller. 38. In what appeared to be a poorly veiled attempt to distance