Prosecutors Seek 30 Years for Doc Who Bilked Medicare for Millions

In this April 28, 2017 photo, Dr. Salomon Melgen arrives at the federal courthouse in West Palm Beach, Fla. (Lannis Water/Palm Beach Post via AP, File)

WEST PALM BEACH, Fla. (CN) – Prosecutors told a federal judge Thursday evening that eye doctor Salomon Melgen deserves a 30-year prison sentence for bilking Medicare out of tens of millions of dollars by administering unneeded diagnostic tests, laser treatments and eye injections.

In a final sentencing hearing in West Palm Beach federal court, Assistant U.S. Attorney Roger Stefin said Melgen lived a “lifestyle of the rich and famous off money looted” from Medicare, traveling on a private jet and reaping a $32 million windfall from excessive use of the injectable eye drug Lucentis.

Though dozens of support letters attesting to the doctor’s kindness, generosity and care for patients have poured into the sentencing court, there was another element of his character — driven by avarice — that ought not be forgotten, Stefin argued.

“This is a man with dual personalities. It is all the more tragic that there was this side to him which was dominated by greed,” Stefin said.

The 63-year-old doctor, dressed in prison garb, on Thursday night addressed the court for the first time in the criminal case, asking Judge Kenneth Marra for mercy.

“I would like to express how sorry I am for the pain I have caused my family, friends and community,” Melgen said in a brief statement. “I know I have made mistakes. But it was always my intent to do everything I [could] to help my patients.”

Prosecutors claim Melgen meets the criteria for multiple sentence-length “enhancements” in part because he consciously or recklessly exposed patients to serious injury, and harmed multiple victims (beyond a 10-victim threshold in the sentencing guidelines).

“These unnecessary procedures resulted in pain, discomfort, and, in some instances, endophthalmitis, a serious eye infection that can lead to vision loss and blindness,” the government’s sentencing memorandum said.

Melgen in November avoided further prison time when a separate criminal case, in which New Jersey federal prosecutors accused him of bribing Sen. Robert Menendez, ended in a mistrial due to a hung jury.

Melgen in that case was charged with giving Menendez political donations, rides on his private jet, and vacations at a Dominican villa in exchange for political favors. Among those favors, the bribery indictment alleged, was Menendez’s assistance in Melgen’s years-old dispute with Medicare over his practice of drawing multiple doses from single-use Lucentis drug vials.

The men both pleaded not guilty, claiming they were longtime friends and that the gifts did not constitute bribes, according to an AP report on the New Jersey trial.

Back in the Florida case, Melgen has been described by prosecutors as “the highest billing ophthalmologist in the United States.” In total he received roughly $105 million from Medicare between 2008 and 2013, according to court documents.

He was accused of maximizing his practice’s income by  carrying out rapid-fire, high-priced diagnostic tests and  misdiagnosing patients en masse so he could apply unwarranted treatments. Some patients had textbook normal maculae when Melgen’s offices diagnosed them with serious macular disorders and subjected them to painful treatments, prosecutors alleged.

The Florida trial came to a close last April, with a jury finding Melgen guilty on 67 counts of healthcare fraud, falsifying medical records and submitting fictitious Medicare claims.

As it did at trial, the defense team has been vehemently pushing back in recent weeks against the notion that Melgen was injuring his patients with bogus treatments. Lead defense attorney Matthew Menchel argued that many patients — whom Melgen was accused of needlessly bombarding with treatment — had been referred to him by other eye doctors for severe eye disease, and in actuality benefited from Melgen’s aggressive regimen of Lucentis injections and laser sessions.

“These patients had sick eyes, very sick eyes,” Menchel said Thursday afternoon during the sentencing
hearing.

Menchel decried prosecutors’ claim that the doctor was recklessly burning his patients’ eyes with an old form of thermal laser treatment that destroys ocular tissue and leaves blind spots.  Though prosecutors refused to admit it Thursday, the government’s own expert witness acknowledged at trial that Melgen at times employed low-power laser settings using a novel, less-damaging form of laser treatment known as “subthreshold” laser, Menchel said.

Menchel further pointed to moments at trial when patients — who were called to the witness stand by the prosecution — claimed Melgen’s treatments helped them. One testified that Melgen resolved artifacts in his vision, while another told the court, “If [Melgen] was still in business … I still would go to him.”

The sight of one of the prosecution’s patient-witnesses hugging Melgen in court made a government agent nearly “apopleptic,” as Menchel described it.

The defense admitted that Melgen had sloppy medical records, directed staff to pre-fill patient charts with macular degeneration diagnoses, and billed for experimental procedures that were not yet approved by Medicare. This led to inaccurate insurance claim submissions for Melgen’s patients with diabetic eye disorders.

Menchel maintained however that Melgen only gave his aggressive treatment regimens to patients who he believed had serious eye disease, a point prosecutors tried to conceal by conflating billing errors with patient abuse, Menchel said.

“[The prosecution] can’t just rely upon billing records … and say there must’ve been harm,” he argued.

Tackling the sentencing guidelines, the defense team said the prosecution’s final tally of the Medicare fraud loss was skewed by faulty statistical methods. Menchel asked the court to limit its assessment of the fraud loss to the 30 patients in the indictment, which by all accounts would put the loss at a small fraction of the prosecutors’ $65 million minimum figure.

As outlined in the defense’s sentencing memorandum, the defense also wants the court’s fraud loss calculation to be discounted by the value of legitimate treatments Melgen administered to patients.

The prosecution characterized that request as a “spate of twisted logic.”

“The defendant should not receive plaudits for falsely diagnosing and overdosing his patients [with Lucentis injections], even assuming some may have benefited,” the government’s attorneys contend.

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