Ricardo H. Asch, former director of the fertility clinic that plunged UC Irvine into an international scandal, was indicted Thursday on federal charges that he engaged in a fraudulent insurance billing scheme.
The 35-count mail fraud indictment by a federal grand jury in Los Angeles is the first against the scandal's central figure, accused by the university and scores of patients of stealing eggs and embryos and implanting them in other women. But, as with previous indictments against his two partners, Drs. Jose P. Balmaceda and Sergio C. Stone, the charges do not touch on the issue of egg stealing.
Rather, the new indictment incorporates fraud charges against all three doctors, accusing them of stealing from insurance companies between 1991 and 1993 by falsely claiming that they were assisted by other licensed physicians when performing fertility procedures. In fact, they either were not assisted or were aided by nonlicensed physicians, such as medical residents or foreigners, whose services could not legitimately be billed, according to the indictment.
The doctors deny knowingly committing any wrongdoing.
Asch's criminal defense attorney, Ronald G. Brower, said Thursday that the narrow scope of the charges is tantamount to vindication.
"Isn't it amazing that . . . multiple federal agencies spent a year investigating and all they can find is some alleged insurance fraud?" Brower said. "It certainly is not what they thought they had when they began. As we've said all along, in the area of embryos and eggs and fertility fraud, these doctors committed no crimes. The limited indictment is proof of that."
Asch left the country more than a year ago, about the time investigators raided his Newport Beach home and Santa Ana office. He is living and practicing in Mexico City.
But Brower said his client is "very seriously considering" coming back to the United States to face the charges. "It's become apparent that there was no criminal misconduct. . . . The fraudulent insurance charges are not true," Brower said. "That being the case, he's considering coming back."
Asch originally was accused by UC Irvine not only of egg stealing, but of research misconduct, illegal importation of fertility drugs and insurance fraud. Authorities also were investigating possible tax evasion. He, his partners and the University of California have been sued by more than 80 former patients, alleging everything from egg theft to fraud.
Judging from previous cases, it could prove difficult to have Asch extradited, should he resist. The same is true for Balmaceda, who was indicted in June, but left before Asch did to live and practice in his native Chile.
Professor Edwin M. Smith, an expert in international law at USC Law School, said that to be successful, prosecutors would have to show that mail fraud is a crime in the other countries.
"I have never heard of anyone pursuing extradition for mail fraud," he said. "An extradition is usually pursued for some very serious crimes like murder and robbery. The general principle is you would have to get experts to see what the law is, if there is any law, on mail fraud in the other countries."
Federal prosectors were tight-lipped Thursday about their strategy, hinting only that other charges against the doctors may follow.
"I think saying the investigation is continuing speaks for itself," said Assistant U.S. Atty. Wayne Gross.
Patients' attorneys, government leaders and UC Irvine administrators greeted the federal action as a step in the right direction. But some said it falls far short.
"The central moral default is not being addressed," said state Sen. Tom Hayden (D-Los Angeles), author of a bill signed into law this year that makes egg and embryo stealing a crime.
"Mail fraud is a kind of technical violation," he said. "The real fraud was perpetrated on these unsuspecting families who really were victims of egg theft. I understand the indictment as an attempt to get Dr. Asch on something, and in that sense it's welcome. In the future, we will not see any more of this, and if we do, it should be prosecuted as the theft of someone's eggs."
UC Irvine Chancellor Laurel L. Wilkening praised federal investigators.
"Today's criminal indictments by the U.S. attorney are a major step toward achieving justice," she said in a written statement.
The charges carry a penalty of up to five years per count, or a fine of up to $250,000. The indictment covers procedures performed at the former UC Irvine Center for Reproductive Health in Orange and at the former Saddleback Center for Reproductive Health in Laguna Hills, which was directed by Balmaceda.
The allegedly defrauded insurers include Blue Cross/Blue Shield, Aetna Life Insurance Co., Connecticut General Life Insurance Co., Metropolitan Life Insurance Co., Cigna and Blue Cross of California. None of the counts involves more than several thousand dollars.