State v. Rodriguez
| Decision Date | 25 August 2021 |
| Docket Number | A-4374-19,A-4371-19,A-4361-19 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Appellant, v. YVONNE JEANNOTTE-RODRIGUEZ, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant/ Cross-Respondent, v. MARTA I. GAL VAN, Defendant-Respondent/ Cross-Appellant, STATE OF NEW JERSEY, Plaintiff-Appellant/ Cross-Respondent, v. LISA FERRARO, Defendant-Respondent/ Cross-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Argued June 3, 2021
On appeal from the Superior Court of New Jersey, Law Division Passaic County, Indictment No. 19-06-0446.
Jay McCann, Chief Assistant Prosecutor, argued the cause for appellant and cross-respondent State of New Jersey (Camelia M. Valdes, Passaic County Prosecutor, attorney; Jay McCann of counsel and on the briefs).
Nathan Kittner argued the cause for respondent Yvonne Jeannotte-Rodriguez (Nathan Kittner, attorney; Nathan Kittner and Jonathan Mincis, on the brief).
Amie E. DiCola argued the cause for respondent/cross-appellant Marta I. Galvan (The Law Offices of Fusco & Macaluso, PC attorneys; Amie E. DiCola, on the brief).
Joseph Lewis Nackson argued the cause for respondent/cross-appellant Lisa Ferraro (Joseph Lewis Nackson, attorney; Joseph Lewis Nackson, of counsel and on the brief; Jeffrey Zajac, on the brief).
Before Judges Ostrer, Accurso and Enright.
OSTRER, P.J.A.D.
In these three appeals, consolidated for our opinion, the State contends the trial court wrongly dismissed (without prejudice) a six-count indictment against Lisa Ferraro, M.D., Yvonne Jeannotte-Rodriguez, and Marta Galvan. During the relevant time period, Rodriguez served as a medical assistant in Dr. Ferraro's medical office, and Galvan was the office manager and worked on billing. The State alleged Rodriguez practiced medicine without a license; Dr. Ferraro and Rodriguez fraudulently billed for Rodriguez's services; and Galvan joined Rodriguez and Dr. Ferraro in conspiring to commit this fraud. The State asserts it presented sufficient evidence to survive dismissal and urges us to reinstate the indictment in full. Dr. Ferraro and Galvan cross-appeal, contending the court should have dismissed the indictment with prejudice.
We affirm. The trial court did not abuse its discretion in dismissing the indictment without prejudice. Most significantly, the prosecutor failed to adequately and accurately instruct the grand jury about what a medical assistant may do without encroaching upon the licensed practice of medicine. And, because the law does not clearly draw a line around a medical assistant's allowable activities, prosecuting someone for crossing the line may violate the right to fair warning.
The prosecutor also improperly referred to additional evidence that he did not present to the grand jury, and presented a questionable analysis of the amount of money involved in the charged offenses. And the indictment lacked sufficient detail to give defendants a fair opportunity to mount a defense.
The indictment at issue in this appeal is not the first one the State obtained against the three defendants. In May 2018, the State secured a three-count indictment charging: Rodriguez with third-degree practicing medicine without a license, N.J.S.A. 2C:21-20 (count one); Dr. Ferraro with third-degree health care claims fraud, N.J.S.A. 2C:21-4.3 (count two); and Rodriguez, Dr. Ferraro, and Galvan with third-degree conspiracy to commit health care claims fraud, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-4.2 (count three). About a year later, the trial court dismissed the indictment without prejudice, holding it was "palpably deficient in its failure to produce any testimony before the grand jury to support the dates set forth in the indictment."[1]
The State then resubmitted the case, calling David Menendez, an insurance fraud investigator for Horizon Blue Cross/Blue Shield who did not testify in the first presentment, and Passaic County Prosecutor's Office Detective Lisa Patterson, who played excerpts of her recorded interviews of Galvan and Dr. Ferraro. The State also granted Rodriguez's request to appear before the grand jury.
Patterson testified that Dr. Ferraro and Galvan actually prompted the investigation. They complained that Rodriguez, who had worked for many years as Dr. Ferraro's medical assistant, was getting paid to redirect Dr. Ferraro's patients to another doctor's office where Rodriguez had gone to work. Rodriguez had been a licensed physician in the Dominican Republic, but had not achieved licensure in New Jersey; although she passed various written examinations, she was unable to secure and complete the prerequisite residency.
Before the grand jury, Patterson presented evidence regarding the charge that Rodriguez held herself out as a licensed physician, or practiced medicine without a license. Patterson confirmed with the state regulating boards that Rodriguez was not licensed to practice medicine nor was she licensed as a "nurse . . . nurse practitioner . . . [or] a physician's assistan[t]." Shortly after leaving Dr. Ferraro's office, Rodriguez posted on Facebook a picture of herself in a white lab coat and a stethoscope. In Spanish, she assured her "patients" that she did not "abandon" them and supplied her new location.
Based on Patterson's interviews with five patients who switched practices, Patterson testified Rodriguez gave physical exams, administered allergy shots, and prescribed medications, and her services were billed to insurers under Dr. Ferraro's unique identification number. One patient, A.A.,[2]told Patterson that she believed Rodriguez was a doctor, and she knew Rodriguez was a doctor in the Dominican Republic. Rodriguez checked her blood pressure, and "ha[d] her sit down to examine her."
Another patient, H.M., told Patterson that she thought Rodriguez was a doctor, and when she called the office [']" H.M. said that Rodriguez examined her ears, and checked her throat with a light; checked her heart with a stethoscope and her knee reflexes with a hammer; and took her blood pressure.
M.A. likewise told Patterson that Rodriguez checked her ears; took blood pressure and temperature; and inquired about the purpose of her visit. M.A. said that Rodriguez would ask Dr. Ferraro "if she could switch [M.A.'s] . . . medication, and [Rodriguez] for the most part would ask Dr. Lisa [Ferraro] what to do for [M.A.]." M.C. said that Rodriguez presented herself as "Dr. Rodriguez" when she came into the room, dressed in a white doctor's coat.
Patterson also presented her recorded interview with Marta Galvan, the office manager. Galvan stated Rodriguez worked as a medical assistant; "she met with the patient and [got] all the patient history and stuff like that." Although Galvan acknowledged Rodriguez did not have a medical license in the United States, she referred to her as "Dr. Rodriguez" because "she obtained a doctoral degree in [the] D.R.," and "[p]atients would contact her by Dr. Rodriguez." Galvan admitted Rodriguez touched the patients, and she wrote in patients' charts, and typed patients' notes in the office's digital record-system once that was implemented. Galvan admitted Rodriguez would enter codes for billing under Dr. Ferraro's name (but she did not say that Rodriguez transmitted the claims to insurers). Galvan also stated Rodriguez wrote prescriptions using Dr. Ferraro's pad. Galvan's answer regarding how often Rodriguez did that was inaudible.
In a video interview with Dr. Ferraro that Patterson presented, Dr. Ferraro described Rodriguez's role:
[S]he would get the ready patients [sic]. She learned how to do a complete history, physical, for all the medications. You know, everything . . . normally you would teach something, and then the physical exam, and we would get our assessment and our plan, and . . . that's how it started and that's how it went.
Patterson elicited the following additional details:
Regarding prescriptions, Dr. Ferraro said, "I would give [Rodriguez] some signed prescriptions and then she would check with me if it was appropriate for that amount." And, regarding how Rodriguez identified herself, Dr. Ferraro said, "She usually called herself Dr. Rodriguez, Dr. Yvonne." Also, the staff referred to her as "Dr. Rodriguez." Dr. Ferraro agreed that the patients thought Rodriguez was their doctor. Rodriguez usually wore a lab coat with a stethoscope.
Dr Ferraro knew Rodriguez was not a licensed medical doctor in the United States. Still, when speaking with patients, Dr. Ferraro would refer to Rodriguez as "Dr. Rodriguez or Dr. Yvonne." Although Dr. Ferraro said "most of the time" she would come into the room to go over Rodriguez's impressions of the patient with the patient present, Dr. Ferraro acknowledged there were times when she did not do that, and instead submitted billing orders based solely on...
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