Malloy v. State
293 Ga. 350
| Ga. | 2013Background
- Malloy, a Georgia gynecologist, was indicted for Medicaid fraud under OCGA § 49-4-146.1(b)(2) for allegedly knowingly and wilfully accepting payments to which he was not entitled or in excess of entitlement, related to abortion-associated or unperformed services.
- DCH’s Program Integrity Unit suspected Hyde Amendment violations and referred the case to the Medicaid Fraud Control Unit; a withhold on reimbursements was issued.
- An ALJ reversed the withhold, noting the State’s interpretation was reasonable but finding no evidence of fraud or wilful misrepresentation; the withhold was terminated by operation of law.
- The State, continuing its investigation, prosecuted Malloy and his office manager; indictments were issued by DeKalb County Grand Jury on December 8, 2011.
- Malloy moved to dismiss/strike, alleging collateral estoppel, vagueness, and other defects; the trial court denied, and Malloy appealed those denials.
- The Court of Appeals denied the State’s motion to dismiss and affirmed the trial court’s orders, addressing jurisdiction, collateral estoppel, vagueness, and surplusage issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is properly before the Court. | Malloy argues review of three trial court rulings is proper. | State contends some orders are not appealable. | Appellate jurisdiction proper; all challenged orders reviewable. |
| Whether collateral estoppel bars the criminal prosecution. | Malloy contends the ALJ’s civil ruling precludes the criminal case. | State argues administrative findings can have collateral estoppel effect. | Collateral estoppel does not bar prosecution; administrative decision not a full opportunity to litigate for criminal purposes. |
| Whether OCGA § 49-4-146.1(b)(2) is unconstitutionally vague as applied. | Malloy asserts lack of notice about “abortion-related” or “associated” services. | Statute, read with the Medicaid manual, provides notice and scienter; not vague. | Not unconstitutionally vague as applied; sufficient notice and scienter understood. |
| Whether the indictment should be dismissed for surplusage/special demurrer. | Challenge to background language and surplusage. | Language clarifies offenses; no reversible surplusage. | Special demurrer and surplusage rejected; indictment affirmed. |
Key Cases Cited
- Ashe v. Swenson, 397 U.S. 436 (U.S. 1970) ( collateral estoppel/single issue preclusion in double jeopardy context)
- Swain v. State, 251 Ga. App. 110 (Ga. App. 2001) (collateral estoppel in administrative-criminal contexts; requires full opportunity to litigate)
- Williams v. State, 132 Wash.2d 248 (Wash. 1997) (public policy and not allowing administrative ruling to foreclose criminal action)
- Cook v. State, 921 So.2d 631 (Fla. 2d DCA 2005) (administrative findings not binding in criminal prosecutions; due process concerns)
- Culver v. State, 254 Ga. App. 297 (Ga. App. 2002) (collateral estoppel in criminal case; need full opportunity to litigate)
- Swain v. State, 251 Ga. App. 110 (Ga. App. 2001) (reiterated factors for collateral estoppel in Georgia)
- Dorsey v. State, 251 Ga. App. 640 (Ga. App. 2001) (criminal collateral estoppel discussion (disapproved in part))
- Kennedy v. Mendoza-Martinez, 372 U.S. 144 (U.S. 1963) (double jeopardy analysis; civil penalties and criminal penalty distinction)