SIU Today Fall 2021 - 19

of the specific wrongful acts. Indeed, failure to plead fraud with
sufficient specificity could expose a plaintiff to counter claims
for harm to a defendant's reputations, such as defamation or
malicious prosecution.
Common law fraud is an excellent, straightforward way for
insurers to recoup indemnity dollars they may have been
induced into paying through fraud. However, we have argued
successfully in certain cases that the legal expenses alone are
sufficient to qualify as recoverable damages in a fraud claim,
even in the absence of indemnity payments.
STRATEGIC CONSIDERATIONS: PROPOSED
LAWSUITS AS STRONG INCENTIVE TO SETTLE
There is an adage in trial advocacy that the best cross
examination is the one you do not have to conduct. The
adage speaks to the reality that the best laid plans of trial
attorneys are not guaranteed to convince a judge or jury.
This is true in any case, including civil recovery cases against
fraud perpetrators. Fortunately, the best and most common
outcome in most organized medical fraud cases is usually a
confidential settlement without formal suit filing and without
trial. These settlements might include financial payments from
wrongdoers, medical bill lien walkaway agreements covering
several years of billing and confidentiality provisions.
No plaintiff in any fraud case ever should threaten, let alone
institute, litigation without ample factual and legal basis. Any
such plaintiff must be ready, willing, and able to file suit and
proceed to verdict if settlement discussions fail. The practical
reality, however, is that an insurer's thorough good faith
investigation that reveals ample basis to file a lengthy fraud and
conspiracy complaint most often is rewarded with meaningful
settlements from wrongdoers who wish very much to spare
their personal and professional reputations the profound
damage of becoming a named defendant in a public lawsuit.
Beyond reputational harm, a wrongdoer who understands he
has no good defense to fraud allegations has strong incentive
to spare himself a financially ruinous triple damage award and
significant attorney's fees.
This is not always the case though. To borrow a line from the
movie Cool Hand Luke, " Some men, you just can't reach. " So
it is, too, in the pursuit of remedies against organize fraud
perpetrators. Sometimes, there is no choice but to file suit and
prepare for trial.
CONCLUSION
The foundation of any potential legal remedy against
organized fraud perpetrators will always be a thorough
claim investigation and a correct interpretation of claim
data. Consultation with experienced legal counsel is equally
important. Thankfully, both federal and state law empower
insurers in proper cases to make themselves whole by clawing
back the dollars they lost to these perpetrators. Our legal
system exists to punish those who commit fraud, and the
courthouse doors are just as open to insurers as they are to
anyone else who may be victims of fraud. Insurers will always
be the prize target of organized rings, and therefore must
always be keenly aware of their rights.
Eric W. Moch, a partner in the Chicago office of HeplerBroom, LLC, focuses his
practice on organized medical fraud and insurance fraud, including organized
activity and staged losses, as well as first- and third-party coverage and bad
faith defense. Mr. Moch counsels and represents national insurers, businesses,
not-for-profit organizations, and individuals in a variety of matters and litigated
disputes. His insurance fraud practice entails the defense of insurers and their
insureds against fraudulent claims at trial and the pursuit of civil recoveries for
insurance carriers resulting in recoveries against medical fraud perpetrators.
He has extensive civil litigation experience in Illinois state and federal courts,
including in excess of fifty jury verdicts, victorious oral arguments before the
Illinois Supreme Court and Seventh Circuit U.S. Court of Appeals and several
published appeals. He is a former national board member of the National
Society of Professional Insurance Investigators and is the former President of
the Illinois chapter. Mr. Moch has also held several positions in the insurance
industry, including as a founding member of a Special Investigations Unit for an
international insurer, a role in which he investigated alleged fraudulent claims
across a wide range of insurance lines. Mr. Moch can be reached at (312) 2057712
and at eric.moch@heplerbroom.com
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SIU Today Fall 2021

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