By Matt Coker
By R. Scott Moxley
By Charles Lam
By Nick Schou
By Gustavo Arellano
By Gustavo Arellano
By Steve Lowery
By R. Scott Moxley
"Multiple providers with equal or greater experience and capacity have been identified," wrote Helberg. "Consequently, this excludes Dr. Kooshian's medical practice from consideration."
In a July 2002 letter to the paper, Kooshian attorney Terence J. Schafer said a Weeklyarticle on Kooshian's attempt to take over a county AIDS program contained "numerous libelous misstatements of fact and asserts libelous allegations of wrongdoing . . . which are plainly false." The lawyer demanded the Weeklyrespond with a published "retraction and correction immediately." The Weeklyreplied instead with a letter telling Kooshian that any legal challenge on his part would be met with a countersuit. Weeklyattorney Alonzo V. Wickers added that the Weekly'ssuit would likely make matters worse for Kooshian: it would be supported, he promised, "by numerous exhibits and declarations corroborating the published information, all of which would become part of the public court file."
No more was heard from Schafer.
* * *
Controversy followed Kooshian. Within months, he found himself in Long Beach Superior Court, in a case that seemed ready for TV. It pitted Kooshian, the celebrated AIDS doctor, against Charles "Karel" Bouley, a onetime KFI radio talk-show host whose domestic partner, Andrew Howard, had died at the age of 34 while under Kooshian's care [see "Dr. Kooshian vs. the Gay Community", March 19, 2003]. Bouley charged that Kooshian should have diagnosed the heart disease that killed Howard in May 2001, and he further alleged that Kooshian prescribed drugs that exacerbated the problem.
Kooshian called Howard's death "a tragedy" and responded in two ways. First, he said, "the nature and degree of coronary artery disease suggested by the autopsy report for this patient was truly extraordinary and unexpected."
Then he offered this interesting defense: as a gay man, Bouley had no legal standing, even under California's liberal domestic-partnership law, to sue Kooshian. Indeed, Kooshian said, Bouley's suit was an attempt to undermine the rights of the real victims in the case: Howard's parents.
"Let me be clear that I fully support the right of a domestic partner to pursue a wrongful-death lawsuit, and I was extremely pleased by Governor [Gray] Davis' decision to sign that bill into law," the doctor said. "My attorneys assured me that we would not be taking any position contrary to the validity of that law."
Bouley scoffed at the doctor's explanation.
"As a gay man, he ought to be embarrassed," he told Moxley. "It's all about the money with him."
But Kooshian won the fight—for the moment. In February 2003, Judge Margaret Hay booted Bouley from the case. Howard's parents remain as plaintiffs but were not entitled to the same level of financial damages if negligence was found.
In a terse opinion, Hay accepted Kooshian's argument that Assembly Bill 25 did not give Bouley the right to sue as Howard's domestic partner because Howard had died five months before the law was enacted. She stated unequivocally that the law "is not retroactive."
Oddly, the judge did not explain how her ruling jibes with the section of AB 25 that declares domestic-partner rights in wrongful-death cases apply "to any cause of action arising after Jan. 1, 1993."
"We expected the judge to rule against us," Bouley said at the time. "She's a very conservative judge. But it was the legislature's intent to make the law retroactive. I couldn't have been more married to Andrew. He would be so mad about what has happened. I definitely plan to appeal."
He did appeal. And he won. The state appeals court threw out Judge Hay's decision, concluding the law was indeed meant to cover events retroactively.
* * *
The U.S. Attorney's office said Kooshian and Opinion will be arraigned Aug. 1 in the Ronald Reagan Federal Courthouse in Santa Ana. At the hearing, the doctor—who could not be reached for comment—is expected to announce whether he'll plead innocent. If convicted, they face up to 10 years in prison for each of the 25 health-care fraud counts, as well as five years of incarceration for conspiracy and false statements.
"The indictment is exactly what Dr. Kooshian deserves, but my heart goes out to Virgil [Opinion]," Lampel told Moxley after hearing of the indictment. Though he no longer represents Opinion, Lampel said he's hopeful "federal prosecutors consider [Virgil's] instrumental whistle-blower role in exposing the doctor's unethical conduct that put so many unsuspecting patients at risk."
Editor's note: Despite Moxley's well-established record of hard work—and, now, success—in pursuing the Kooshian story, The Orange County Register was strangely discursive in reporting the July 20 indictments. Reading the paper the next day, you might have concluded that Virgil Opinion walked into a public square—the Spectrum, maybe, or the Orange Circle—and yelled his story through a megaphone. Opinion, the Reg reported, simply "went public with accusations against Kooshian." But if that were true, the story might have ended then and there, in 2001, with one man's word against his former employer's in a typically contentious wrongful-termination suit. But the U.S. Attorney is clear about the genesis of the indictment, and so was the Los Angeles Times, which graciously credited Moxley's Weekly series.