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Melgen lawyers plan war of experts in Medicare fraud trial


Having long argued that Palm Beach County ophthalmologist Salomon Melgen was an innovative physician, beloved by his patients for trying to restore their vision when other doctors gave up hope, his attorneys on Monday sought to discredit an expert who shored up prosecution claims that Melgen misdiagnosed patients to pad his wallet.

Pointing to surveys Melgen gave his patients, defense attorney Matthew Menchel showed a federal jury that many reported their eyesight improved after the 62-year-old eye doctor treated them for ailments that expert Dr. Stuart Fine insisted they didn’t have.

Menchel also unveiled medical studies to debunk Fine’s claims that laser treatments Melgen administered had fallen out of favor with doctors more than a decade ago. More recent studies, Menchel argued, found such treatments helped some who, like the vast majority of Melgen’s patients, were losing their eyesight to age-related macular degeneration.

Despite hours of questioning, the ophthalmologist who has been honored by the American Academy of Ophthalmology and who still teaches at the University of Colorado School of Medicine, remained firm.

The results of patient satisfaction surveys are meaningless, Fine said. “Statements like this lack credibility,” he told the jury, which will decide whether Melgen bilked Medicare out of as much as $105 million as the government claims. “It depends who is asking the question and how it is asked.”

Further, Fine said, a doctor doesn’t judge the efficacy of his treatment on patient surveys. While it’s polite to ask patients how they are feeling, tests and doctor know-how determine a physician’s course of action, he said.

Fine’s ongoing testimony came on the same day the U.S. Supreme Court dealt a blow to Melgen and his longtime friend, U.S. Sen. Bob Menendez. The high court without comment declined to hear the New Jersey Democrat’s appeal on corruption charges.

That means the case, accusing Menendez and Melgen of operating a mutually-beneficial corruption scheme, is headed for trial in New Jersey in the fall. Menendez attorney Abbe Lowell said his client “remains confident that he will be vindicated when all the facts are heard at trial.” Prosecutors in that case claim Melgen showered Menendez with campaign contributions and free trips so the lawmaker would help the eye doctor with various problems, including his ongoing fight with federal regulators over his Medicare billings.

In questioning Fine about various medical studies, Menchel made it clear that the six-week trial will be a battle of experts. U.S. District Judge Kenneth Marra gave Menchel the go-ahead to ask Fine about opinions of other experts that federal prosecutors plan to call to testify against Melgen.

“The experts are not in agreement on fundamental issues,” argued Menchel, who also plans to call his own medical professionals to refute the prosecutors’ claim that Melgen misdiagnosed and improperly treated hundreds of patients at clinics in West Palm Beach, Delray Beach, Wellington and Port St. Lucie from 2008 to 2013.

Fine disputed the studies Melgen cited. One was based on an analysis of 12 patients, he said. “This so-called study,” Fine said. “I’d call it a preliminary report.”

He was equally disdainful of a 2010 survey that found 44.3 percent of ophthamologists continued to use lasers to treat patients with wet macular degeneration. He said only 50 percent of eye doctors respond to such surveys, which makes the results suspect.

Menchel shot back: “Kind of like when you looked at 33 files instead of all 2,300 patients Dr. Melgen treated.”

The preferred method of treating patients with wet macular degeneration is with drugs, primarily one called Lucentis. Melgen also billed Medicare millions for injecting Lucentis in the eyes of scores of patients. In some cases, prosecutors claim, he billed them for using the same vial of Lucentis on more than one patient, a practice known as multi-dosing.

Fine, who has spent four days on the witness stand, testified that many of Melgen’s patients didn’t have wet macular degeneration. Some had its dry counterpart, which is untreatable. Some, like one patient who had a prosthetic eye, didn’t have either, he testified.

Fine is expected to wrap up his testimonyTuesday. Prosecutors are then to call several of Melgen’s former patients to the witness stand.



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