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Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

11th Circuit Court of Appeals Rejects Florida Eye Doctor’s Request for New Medicare Fraud Trial

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On July 31, 2020, a panel of U.S. Eleventh Circuit Court of Appeal judges upheld a 17-year prison sentence for a Florida ophthalmologist found guilty of Medicare fraud. The three-judge panel rejected an appeal in which Salomon Melgen claimed prosecutors mishandled his 2017 criminal trial.

It upheld the conviction on all 67 counts, deemed the 17-year-sentence to be even-handed, and denied him a new trial.

Details of the Case and Why the Former Ophthalmologist Requested a New Trial.

To understand how the panel reached their decision, it helps to understand the details of the scheme and the accusations. Back in April 2017, a jury in the Southern District of Florida convicted Melgen of carrying out systemic billing fraud at his South Florida medical offices. He stood accused of routinely administering unnecessary, invasive treatments and profiteering off the macular-degeneration drug Lucentis.

Additionally, he was charged with running millions of dollars’ worth of unnecessary diagnostic tests, often using outdated technology that allowed him to bill at higher rates.

According to the opinion, Melgen presented a list of perceived reasons for reversal, including the sufficiency of the evidence and reasonableness of his sentence. He argued that charts comparing his billing rates to his peers were not covered by Federal Rule of Evidence 1006 and, therefore, amounted to inadmissible hearsay in violation of the Confrontation Clause of the U.S. Constitution. To learn more, click here to view his appeal.

Unfortunately for the doctor, the alleged errors in the trial did not persuade the judges.

Other Alleged Errors and How the 11th Circuit Judges Came to Their Decision.

One issue was whether any of the witnesses’ communications with others had tainted their testimony at the trial.  In the opinion, the appellate panel stated that Melgen failed to show that the witness interactions affected testimony. The trial court did not abuse its discretion by continuing the trial after the witness intimidation came to light. Lastly, the sentence length the district court imposed was “more than reasonable,” the panel stated.

U.S. Circuit Judge Britt C. Grant, said on behalf of the panel, “The scope of the scheme was easily enough for the jury to conclude that Melgen had engaged in systematic fraud, rather than committing isolated mistakes. We find the evidence sufficient to uphold the jury’s verdict.” You can read the opinion in full here.

Contact Health Law Attorneys Experienced with Investigations of Optometrists and Ophthalmologists.

The attorneys of The Health Law Firm provide legal representation to optometrists, ophthalmologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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Kapnick, Izzie. “11th Circuit Upholds Doctor’s Massive Fraud Conviction.” Courthouse News. (July 31, 2020). Web.

Jarvis, Sarah. “11th Circ. Won’t Grant Menendez-Linked Doc New Fraud Trial.” Law360. (July 31, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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