REQUEST FOR JUDICIAL NOTICE
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BARBARA SHANG MD OFFICE EYE INFECTION OUTBREAKS
Pursuant to Evidence Code sections 452 and 459, we hereby respectfully bring this Request for Judicial Notice of the following matters:
An article by the U.S. Dept. of Health and Human Services, Centers for Disease Control and Prevention (“CDC”), said article being called Adenovirus-Associated Epidemic Keratoconjunctivitis Outbreaks – Four States, 2008–2010, and appearing in Morbidity and Mortality Weekly Report (Vol. 62, No. 32, August 16, 2013) (“2013 CDC Article”). See also, https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6232a1.htm, where the article is publicly available.) A true and correct copy of said article is attached hereto as Exhibit A.
A second article by the CDC, said article being called Health Care–Associated Outbreak of Epidemic Keratoconjunctivitis – West Virginia, 2015, and appearing in Morbidity and Mortality Weekly Report (Vol. 65, No. 14, April 15, 2016) (“2016 CDC Article”). See also, https://www.cdc.gov/mmwr/volumes/65/wr/pdfs/mm6514a5.pdf, where the article is publicly available.) A true and correct copy of said article is attached hereto as Exhibit B.
Documents obtained pursuant to the Freedom of Information Act (5 U.S.C. § 552) from the U.S. Dept. of Health and Human Services, Centers for Medicare & Medicaid Services (“CMS”), said documents evidencing Medicare and Medicaid billings Defendant/Respondent Barbara Ya-Hui Shang, M.D. (“Defendant”) at relevant times for treatment of patients with the EKC virus (epidemic keratoconjunctivitis) (“CMS Documents”). True and correct copies of said documents are attached hereto as Exhibit C, and authenticated by Dr. Alai, who received them directly from the CMS. They are also consecutively paginated and highlighted for the convenience of the Court and all parties.
A. INTRODUCTION
More than 30 patients became infected with an incurable viral eye infection called Acure Follicular Conjunctivitis “AFC” also called EKC Epidemic Keratoconjuctivits due to the negligence of eye doctor, Dr. Barbara Ya sui Shang, occurring primarily from February 2011 through at least November 2011 through examinations at Dr. Shang’s Irvine clinic.
On October 5, 2012, Dr. Shang answered a lawsuit which was filed against her on August 16, 2012, for just one of these many infections.
The EKC virus is described in the CDC Article as a highly contagious, severe, viral conjunctivitis associated with adenoviruses, and which causes the inflammation of the cornea (the transparent front of the eye) and conjunctiva (the lining of the inside of the eyelids covering most of the sclera, the “white” of the eye). The CDC Article also states there were known eye doctor office based “outbreaks” of the same EKC virus (over 400 reported cases) in other sreas including Florida, Illinois, Minnesota and New Jersey alone occurring as late as July 2010.
The CMS Documents provide evidence that from at least February 2011 through July 2012, and precisely during an August 2011 time period, Dr. Shang alone received federal funding pursuant to the Medicare programs for treatment of the EKC virus. The CMS Documents show that Dr. Shang treated 34 Medicare patients afflicted with the EKC virus between March 2011 and December 2011, many of them on more than one visit. Indeed, Illinois was considered by the CDC to be in an “outbreak” even though there were only 18 reported cases in that entire state, meaning Dr. Shang’s office was the epicenter of a public health crisis.
Dr. Shang concealed her outbreaks and succeeded in having evidentiary sanctions imposed against witnesses because they had sent packets of information on the EKC virus, through the U.S. Postal Service to individuals who were patients of Dr. Shang. The CDC Article was literally included the packet, and was part of Dr. Shang’s moving papers. Prior to her knowledge about the lawsuit, Dr. Shang freely disclosed that she had a large number of EKC outbreaks in her office, and “some of them were even new patients” to her, meaning she was aware that most of her patients were being exposed at her office to the infection. Dr. Shang had known that there were many other cases of EKC virus associated with her office because she knew of and freely disclosed early on that at least 4 people she diagnosed by phone with EKC a week after seeing her in her office. Shang’s patients identified who knew each other had contracted the disease after being examined by Dr. Shang between August 1, 2011 and August 17, 2011. In addition, Dr. Shang herself had told people that on August 15, 2011 that she had another patient (who turned out to be Cheryl Leggett) who also had the most severe case of the EKC virus that Shang had ever seen.
At the time these infected patients were not aware of the CMS data and statistics showing that Dr. Shang treated nearly 2 dozen Medicare beneficiaries for the EKC virus in the August 2011 time period, to say nothing of Dr. Shang’s non-Medicare patients who also became infected. This also did not account for Shang’s EKC patients whom she diagnosed by telephone and therefore did not bill Medicare for with the precise diagnosis, and also the patients who went to other doctors and got diagnosed there with EKC.
Although Shang’s patients did not receive the CMS Documents until years later, Shang and her attorneys did have access to them, as would have the Medical Board.
If the patients had known of Shang’s CMS statistics, they certainly would have presented them in opposition to Dr. Shang’s concealment and denial of her infections to the Office of the Inspector General and Medical Board. We must now take judicial notice of the CMS Documents, in order to show the severity of the public health crisis involved in Shang’s office.
A motion to disqualify Dr. Shang’s attorneys was filed because Shang and her lawyers tampered with witnesses like Cheryl Legget and made sure they did not talk of the infection outbreak. In large part, Shang and her attorneys’ acts of unduly influencing Mrs. Leggett not to testify, caused so much so that Ms. Leggett refused to answer deposition questions after having been served with a subpoena.
B. GOOD CAUSE EXISTS TO TAKE JUDICIAL NOTICE OF THE SPECIFIED MATTERS AS THERE IS AUTHORIZATION TO DO SO.
Evidence Code section 459, subdivision (a) states, an office “may take judicial notice of any matter specified in Section 452.” Evidence Code section 452, subdivision (c) allows judicial notice of the acts of any executive agency of the United States, which would include the CMS and the CDC. Evidence Code section 452, subdivision (d)(1) judicial notice of the records of any court in California. Shang’s patients and her attorneys were presented a copy of the CDC Article, but nobody (except Dr. Shang and perhaps her attorneys) knew of the CMS statistics showing that she treated dozens of patients afflicted with the EKC virus from her office. The CMS Documents are directly relevant in that they prove that the EKC Virus was commonly present in Dr. Shang’s eye clinic at relevant times. The documents show to the day when a patient was seen and how they came back 7-14 days later with a new diagnosis of an eye infection which they did not have at the prior visit.
C. CONCLUSION
For the above reasons, judicial notice of the three matters identified are warranted.
On or about September 1, 2016, a request was made under the Freedom of Information Act to the U.S. Dept. of Health and Human Services, Centers for Medicare & Medicaid Services (“CMS”), for documents evidencing Medicare and Medicaid billings from Defendant/Respondent Barbara Ya-Hui Shang, M.D. (“Dr. Shang”) at relevant times for treatment of patients with the EKC virus (epidemic keratoconjunctivitis) (“CMS Documents”). Specifically requested were the billing information and the billing code data for Dr. Shang.
On or about November 4, 2016, in response to the Freedom of Information Act request, CMS sent out the attached Excel spreadsheet (setting forth billing information) and a sheet setting forth the explanation of the billing codes. Said documents received from the CMS and the CMS’s cover letter are attached hereto as Exhibit C, with highlighting. Said documents show that Dr. Shang submitted billings for Medicare reimbursement for her role in “diagnosing” and “treating” 34 different Medicare beneficiaries from March 2011 to December 2011 that she diagnosed as having the EKC virus, many on more than one occasion.
According to the CMS, the EKC virus (which is a type of acute follicular conjunctivitis) was designated, effective October 1, 2010, by the “37202” ICD-9-CM code. (see https://www.cms.gov/Medicare/Coding/ ICD9ProviderDiagnosticCodes/codes.html.) The ICD-9-CM codes on the CMS Document can be found in the columns entitled DX1, DX2, DX3, DX4. “DX” is the medical abbreviation for “diagnosis.” The patients are not referred to by name, but by their HICN numbers.
The CMS data show that Dr. Shang’s patient Cheryl Leggett, with HIC # **9603285A
was seen just by Dr. Shang alone more than 9 times with the acute eye infection and complications of the infection from mid 2011 to 2012. Dr. Shang billed CMS for Legget’s visits on these dates with EKC:
3/31/2011
8/3/2011
8/3/2011
8/15/2011
8/17/2011
8/17/2011
9/6/2011
9/16/2011
9/30/2011
9/30/2011
11/28/2011
5/2/2012
According to CMS, Dr. Shang billed Medicare $1391 and received total government funds of $1073 for her patient Cheryl Leggett, with HIC # **9603285A from just 3/31/11 to 5/2/12. The CMS records showing Legget’s eye infections all during 2011, and in particular from “August 1, 2011 to August 17, 2011” are highly conflicting with sworn declarations which Shang made multiple government and administrative agencies where she denied any of these infections- including but not limited to the Medical Board of California, Office of the Inspector General, Orange County Health Department, Superior Court of California.
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Attorneys for Barbara Ya-Hui Shang, M.D.
Robert L. McKenna, III
Benjamin Taisuke Ikuta
Carroll Kelly Trotter Franzen McKenna & Peabody
111 W. Ocean Blvd., 14th Floor
P.O. Box 22636
Long Beach, CA 90801-5636
(562) 432-5855 voice
(562) 432-8785 fax
Attorneys for Barbara Ya-Hui Shang, M.D.
Kenneth R. Pedroza
Cole Pedroza LLP
2670 Mission St., Suite 200
San Marino, CA 91108
(626) 431-2787 voice
(626) 431-2788 fax