Crux of Melgen case: Was misdiagnosis Medicare fraud or honest error?


On June 8, 2010, Kermit Foster visited Dr. Salomon Melgen’s eye clinic for the first time and and was diagnosed with several ailments in both his right and left eye after having both eyes scanned.

Dr. Stuart L. Fine, an ophthalmologist and expert who has been on the witness stand since Monday in Melgen’s $105 million Medicare fraud trial, smiled slightly and tilted his head when Assistant U.S. Attorney Roger Harris Stefin asked him Wednesday to start by explaining to jurors what was wrong with the diagnoses of Foster’s right eye.

“It’s impossible. There’s no eye there,” Fine explained, repeating for jurors the fact that Foster’s right eye had previously been removed and replaced with a plastic prosthetic. “There was nothing to examine.”

Foster’s case is just one of dozens that federal prosecutors say Melgen, 62, used to bilk Medicare out of as much as $105 million. In those cases, prosecutors say Melgen diagnosed patients with a rare form of macular degeneration and other ailments, treating them with prescription eye injections and laser treatments.

In Foster’s case, charts in subsequent visits acknowledged the lack of a right eye, but Fine said Melgen also was completely wrong to diagnose Foster with macular degeneration in his left eye as well.

And Fine had similar opinions about other patients whose files he reviewed as a sampling of the hundreds of mostly elderly patients that Melgen examined at eye clinics in West Palm Beach, Wellington, Delray Beach and Port St. Lucie.

Cassandra Dukes, another patient whom Melgen treated for several years, was in her mid-forties when she first visited him and complained that she could only see straight ahead or above her line of sight, but not below.

Fine said Melgen diagnosed Dukes with age-related macular degeneration and added that it was the more rare wet form of macular degeneration.

Before telling jurors that his scans of Dukes’ eye exams showed she had no such illness, Fine, a clinical professor of ophthalmology at the University of Colorado, said the likelihood of Dukes having such a disease was extremely low — even on paper.

First, he explained, Dukes was African-American, and age-related macular degeneration is an illness that mostly effects Caucasians. Macaular degeneration, Fine said, also rarely affects people younger than 60, and even among people in their 60s it affects fewer than one in 10.

Making Melgen’s diagnosis even more questionable, Fine said, was his finding that it was the “wet” form of macular degeneration, which affects less than 20 percent of macular degeneration patients.

The distinction between the “wet” and “dry” forms of the eye ailment has become a key issue in the case, because while the more common “dry” form of the illness is untreatable in advanced stages and can be treated with vitamin supplements early on, the rarer form can be treated with the injectable drug Lucentis. By diagnosing patients with the more uncommon illness, prosecutors say, Melgen could charge for the drug and bill Medicare.

In the case of Delores Griffith, the woman who coincidentally was at the center of a defense move for a mistrial over the weekend, Fine said she had advanced dry macular degeneration but received Lucentis injections anyhow.

All told, Melgen billed Medicare $190 million and was paid more than $105 million between January 2008 and December 2013, according to the federal indictment against him.

By 2013, Melgen’s hefty Medicare payments and his disagreement with the federal government over his practice of injecting multiple patients with a single vial of Lucentis was well known. In 2012, according to federal documents, he billed Medicare more than any other doctor in the nation — $21 million.

Melgen’s defense attorneys at the start of the trial called cases like Foster’s the result of honest mistakes and told jurors that prosecutors cherry-picked the errors in order to paint them as fraudulent.

Defense attorney Matthew Menchel questioned Fine about his findings on Wednesday and asked the professor, who has led or co-chaired half a dozen clinical studies on macular degeneration, whether his diagnosis standards were simply higher than “real world” physicians like Melgen.

Although Menchel said that photographs taken during an eye exam are the final authority when it comes to diagnosing eye ailments such as macular degeneration, Menchel got Fine to agree that sometimes what a doctor sees during an eye exam can be different from what is captured on a photograph.

“This sounds like a process where perfectly good physicians can make mistakes all the time,” Menchel said.

“I wouldn’t say all the time,” Fine said. “But there are discrepancies, and the bottom line is, we go with what’s on the photograph.”

Marra on Tuesday told jurors they wouldn’t be hearing testimony in the case Thursday or Friday. Fine is expected to return to the witness stand Monday.

In a separate case, Melgen also faces 13 additional charges for allegedly showering gifts on Democratic U.S. Sen. Bob Menendez in exchange for Menendez’s help in a billing dispute with the Centers for Medicare & Medicaid Services, among other favors.

Melgen defense attorneys will begin their cross-examination of Fine on Wednesday afternoon.



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