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

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

It upheld the doctor‘s 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 Wanted a New Trial.

To understand how the panel reached its decision, it helps to understand the details of the scheme prosecuted and the accusations. 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 wrongfully profiting off of the macular-degeneration drug Lucentis.

Additionally, the physician was charged with running millions of dollars’ worth of unnecessary diagnostic tests, often using outdated technology (allegedly unreliable and without a medical necessity for them), that allowed him to bill at higher rates.

According to the appellate decision, Melgen claimed list of reasons for reversal, including the insufficiency of the evidence, and unreasonableness of his sentence. He argued that charts containing an analysis comparing his billing rates to his peers, used at trial, were not covered by Federal Rule of Evidence 1006.  He claimed that they amount to inadmissible hearsay and improper evidence, violation of the U.S. Constitution’s Confrontation Clause (providing individuals accused of crimes the right to confront the witnesses against them).  To learn more, click here to view the doctor‘s appeal.

Unfortunately for the doctor, the errors he alleged in his appeal did not persuade the judges.

How the 11th Circuit Judges Came to Their Decision.

In the opinion, the panel stated the trial court did not abuse its discretion by continuing the trial after possible witness intimidation by the government came to light. It stated that the length of the sentence that the district court imposed was “more than reasonable.”

U.S. Circuit Judge Britt C. Grant, stated on behalf of the appellate panel:  “The scope of the scheme [prosecuted] 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 routinely provide legal representation to ophthalmologists, optometrists, and other health providers.  We routinely provide defense legal advice and representation for ophthalmologists and optometrists; defense to complaints filed against their licenses;  defense to complaints filed by patients;  defense in litigation against ophthalmologists and optometrists; legal representation and defense to DEA and Board of Optometry and Board of Medicine audits, investigations, and subpoenas; legal representation in depositions in criminal cases, negligence cases, civil cases, or disciplinary cases involving other health professionals.  We have experience in dealing with HIPAA privacy complaints, audits and investigations.  We have experience in defending in MedicareMedicaid, Tricare, and health insurance audits.  We accept most professional liability insurance that pharmacists carry.  We prepare, negotiate and litigate contracts.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 or toll free to 1-(888) 331-6620, and visit our website at


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 or 1(888) 331-6620.

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