Indicting Doctors for Medical Malpractice

Indicting Doctors for Medical Malpractice in Florida and Nationwide

The Florida Bar Health Law Section recently included an article written by Andrew S. Feldman in the October Edition of Health Law Updates. The article focuses on the Department of Justice’s increasing commitment to prosecuting doctors including cardiologists, surgeons, dermatologists, and ophthalmologists based on allegations that the doctor has performed medically unnecessary services to defraud Medicare, Medicaid, or private insurance companies. A link to the article on health care fraud and abuse can be found here and the article is below. 

Recently, the Criminal Division of the Department of Justice has bulked up on its health care fraud indictments against physicians and dermatologists for performing medically unnecessary surgeries or procedures. Indeed, Assistant Attorney General Leslie Caldwell reinforced during the ABA’s National Institute on Health Care Fraud and Abuse in May of this year that the Department is committed to aggressively prosecuting fraud that compromises patient safety. So far, the list of defendants includes interventional cardiologists, dermatologists, and spinal surgeons.

Nonetheless, more doctors turned defendants are forcing the government to prove their guilt beyond a reasonable doubt at trial in these cases. In September, esteemed ophthalmologist, Dr. David Pon, was convicted of 20 counts of health care fraud following a month long trial in Jacksonville, Florida. The evidence adduced at trial demonstrated that Pon intentionally misdiagnosed more than 500 Medicare beneficiaries as suffering from wet macular degeneration, a degenerative and incurable disease, and then used his false diagnoses to bill the Medicare program for unnecessary diagnostic testing and unwarranted laser treatments.

Similar to Dr. Pon, last month, cardiologist, Dr. Harold Persaud was also convicted of multiple counts of health care fraud based on evidence at trial demonstrating that Dr. Persaud falsely diagnosed patients and falsified documentation in order to implant cardiac stents in patients when stents were unnecessary. Significantly, at trial, Dr. Persaud asserted that he had a “good faith” defense to the health care fraud accusations reasoning that any surgeries were performed through mistakes or carelessness and were not performed to cheat or deceive the Medicare program and draining U.S. tax dollars.

The above physicians are not alone though. Future medical necessity prosecutions abound, including a health care prosecution targeting a South Florida ophthalmologists’ use of Lucentis injections to treat macular degeneration, and a prosecution of a dermatologist premised on the performance of alleged unnecessary Mohs surgeries. Both cases are set for trial in 2016.

Thus, in 2016, it is anticipated that the Department will continue to investigate and prosecute fraud in connection with the performance of unnecessary surgeries or procedures.

Feldman Firm has experience representing physicians and health care practitioners in health care fraud investigations and prosecutions. Contact the Feldman Firm if you have been accused of or are under investigation for health care fraud and abuse.