The Californian (Salinas, California)

December 24, 2010 Friday

Former Soledad prison doctor held to fraud charges

BYLINE: By, SUNITA VIJAYAN

SECTION: NEWS

LENGTH: 648 words

svijayan@thecalifornian.com
A psychiatrist who worked with Salinas Valley State Prison three years ago was bound over Thursday on charges that he stole $45,000 in taxpayer’s money by over-billing his hours.
Following a two-day preliminary hearing, Monterey County Superior Court Judge Larry Hayes decided to hold Dr. Mark Herbst on four felony charges of presenting a false claim, and one count each on destroying or altering a public record and grand theft of more than $400.
Hayes decided there was not enough evidence to proceed with the case against co-defendant Dr. Wade Exum, declaring him innocent of all criminal charges. Exum, who lives in Nevada, had been accused of stealing $13,570 of taxpayer’s money by over-billing.
Hayes cited two reasons to release Exum: There was no pattern of a crime being conducted, and that could have been performing administrative duties outside of the office.
“Dr. Exum was not just being paid for patient treatment; he was being paid to hold administrative duties, which according to the evidence, could be done and probably was done out of the secured area of the prison,” he said. “The video showing him leaving the secured area of the prison does not mean that there was a crime occurring at the time because he easily could have been doing administrative work not only in the cafeteria, administrative offices, but on his cell phone, while he was traveling, on his internet, many other times ¶ so I will not hold Dr. Exum ¶ to answer to any of the charges against him.”
In Herbst’s case, Hayes said, there was a pattern coupled with inconsistent statements to investigators that demonstrates reasonable cause to be held over for trial. He referred to several occasions showing that Herbst billed for more hours than he had been at the prison.
“There were 28 days where the evidence shows he was working less than six hours a day even though he was billing for a full 10 hours a day,” Hayes said. “To me that is evidence of a false presentation of the claims for those hours, and amounts to theft – at least based on preliminary hearing standards.”
The judge also rejected a request by the defense to reduce the charges to misdemeanors. Herbst’s defense lawyer, Andrew Liu, argued that his client had never intended to commit a crime. Herbst faces the possibility of the loss of his medical license if he receives a felony conviction in the case, Liu said.
Exum and Herbst, along with four others – including the chief medical officer for the prison – were initially indicted by a county grand jury in November 2008 – accused of defrauding state taxpayers of more than $150,000 by lying about their work hours and doctoring their timesheets. All of the doctors except for Lee were contracted with the state.
The indictment followed an 18-month investigation, from January 2007 to July 2008, by the state Office of the Inspector General and stemmed from an anonymous letter received by the office about doctors overbilling the state and submitting padded invoices for medical and psychiatric services rendered.
According to court documents, two of the doctors, Randy Sid, who lived in Pacific Grove at the time, and David Hoban of Santa Cruz, have since pleaded no contest to felony charges in connection to the indictment.
Doug Matheson, a county deputy district attorney, said that the charges they pleaded to were reduced to misdemeanors by a judge following completion of their sentences.
Charges against the chief medical officer at the time, Dr. Charles Lee, were dismissed in July 2009 because of insufficient evidence. Only one case, Dr. Pedro Eva’s, remains in the indictment. Eva is scheduled for trial on Feb. 7.
Matheson said prosecutors decided to re-file the case against Exum and Herbst after the judge dismissed the initial indictment charges because of insufficient evidence.
what’s next
Dr. Mark Herbst is expected to return to court on Feb. 3.