A civil suit brought by the government of Bermuda accuses Lahey Clinic of bribing its former leader as part of a vast racketeering conspiracy to secure health care business on the small island.
Lahey has denied the allegations, and neither officials at the Burlington hospital nor former premier Ewart Brown has been charged criminally. That has raised questions about the Bermuda government’s legal strategy and how the federal case is likely to unfold.
What is a civil racketeering suit?
The Racketeer Influenced and Corrupt Organizations Act of 1970, commonly known as RICO, was initially intended to target organized crime. But over the years, federal prosecutors have used it to crack down on legitimate businesses involved in a wide range of crimes. A component of the law allows anyone to file suit in civil court if they have been a victim of racketeering, which encompasses more than 30 individual crimes, from bribery to fraud.
“You’ve got to prove that a person or business is conducting the affairs of an enterprise through a pattern of racketeering,’’ said David Schumacher, who recently became a partner at Hooper, Lundy & Bookman after eight years as a prosecutor in the US attorney’s health care fraud unit. “It’s not an ordinary association or people who just happen to be in a business relationship.’’
What are the advantages to filing a civil suit?
Even in civil cases, plaintiffs must prove they were harmed by members of an enterprise who committed a pattern of at least two crimes. But the standard of proof is lower. Jurors must find charges are proved by a preponderance of the evidence, rather than beyond a reasonable doubt.
From the plaintiff’s point of view, there is another advantage. As long as one of the alleged crimes was committed within the statute of limitations, the suit may also include crimes that could not otherwise be prosecuted.
“It’s evolved into a go-to statute that is used in white collar, securities, and health care cases,’’ said Boston attorney Martin G. Weinberg. “It’s exploited by civil lawyers to bring claims that would otherwise be time-barred and to bring claims that are criminal in nature to try to inflame a jury.’’
Courts are often skeptical of civil racketeering cases, he said, and frequently dismiss them. But there’s a lucrative payout for those that succeed. Winners in civil racketeering cases are entitled to triple damages.
What will the government of Bermuda have to prove to win its suit?
The suit alleges that Brown directed a large share of the island’s health care business to Lahey in return for bribes, which were disguised as consulting fees.
But it’s not enough for Bermuda’s lawyers to prove that fraud was committed, Schumacher said.
“They have to show that Lahey Clinic acted with intent to defraud and that there was a scheme to defraud,’’ he said. A claim that it acted in good faith would be a powerful defense, he said.
The key question for a judge or jury, he said, is “was this arrangement a kickback scheme to promote unnecessary testing or was it just a garden-variety business arrangement between Lahey Clinic and Dr. Brown that brought much-needed medical services to Bermuda?’’
Lawyers for the government will also have to delve into patients’ medical records to prove they were given MRIs and CT scans that were unnecessary. They would have to prove the government lost millions of dollars in insurance payments as a direct result of the racketeering scheme.
What is the difference between a bribe and a consulting fee?
That’s a question that has come under increased scrutiny by the US Justice Department in recent years. But it’s not unusual for American companies to rely on consultants when doing business in other countries, Weinberg said.
“Inevitably, you have to rely on professional or business persons in the country where you want to do business to help open doors, illuminate regulations and lobby decision makers,’’ Weinberg said.
Schumacher said the “fighting issue’’ when it comes to bribery allegations always comes down to intent. In this case, he said, the question is what was Lahey’s intent when it made payments to Brown.
“Lahey is going to try to show good faith, that these were real consulting contracts and they got real services for the money they paid,’’ Schumacher said.
Is it unusual for a civil racketeering case to be filed when no criminal charges have been brought?
The answer is no, according to specialists. Yet it’s always easier for plaintiffs to prove their allegations if the party they are suing has been charged or convicted of those crimes.
“They don’t have an underlying conviction they could point to, which would make it a lot easier for them to prove crimes were committed,’’ Schumacher said of Bermuda’s suit. “The most difficult challenge is to prove the defendant acted with criminal intent, particularly when you’re talking about a well-recognized, legitimate business like Lahey Clinic.’’
Shelley Murphy can be reached at shmurphy@globe.com.