Nearly three years after Dr. Salomon Melgen was indicted on charges of health care fraud and influence peddling, the wealthy, politically-connected Palm Beach County eye doctor on Thursday will finally break his silence about criminal charges that could force him to spend the rest of his life behind bars.
His attorney, Matthew Menchel, on Wednesday told U.S. District Judge Kenneth Marra that Melgen would make a “brief statement” before what has stretched into a five-day sentencing hearing concludes.
Menchel didn’t reveal what his client would say, but the 63-year-old retinal specialist is expected to follow the lead of other criminal defendants: He likely will apologize for his actions in hopes Marra will show mercy when he sentences him on 67 charges of health care fraud.
Melgen’s attorneys have vowed to appeal his April conviction here on the health care fraud charges. He also faces the prospect that he will be retried in New Jersey with his longtime friend, U.S. Sen. Robert Menendez, for operating what federal prosecutors described as a mutually beneficial bribery scheme. A mistrial was declared in November when jurors couldn’t reach a unanimous verdict on whether Melgen or the powerful Democrat broke the law.
The stakes are high for Melgen. Federal prosecutors here are pushing for a 30-year sentence, claiming Melgen bilked Medicare and private insurers out of as much as $136 million by misdiagnosing and mistreating scores of elderly patients for wet macular degeneration, a sight-robbing eye disease they didn’t have.
While Melgen’s defense team hasn’t said what they believe would be an appropriate punishment, they have insisted prosecutors are over-reaching. They claim insurers lost only about $64,000 because many of Melgen’s patients suffered from diabetes-related eye ailments and benefited from the unconventional treatment.
As they did during a three-day hearing in December when they revealed their vast disagreement about the cost of Melgen’s misdeeds, the two sides spent Wednesday spouting wildly different views about treatment Melgen offered at clinics in West Palm Beach, Wellington, Delray Beach and Port St. Lucie.
At times, Marra voiced skepticism about arguments raised by both sides.
For instance, he sharply questioned Melgen lawyers when they suggested the doctor’s fraudulent billing caused little financial harm to Medicare. “So there’s fraud, but no loss?” Marra asked.
Melgen attorney Josh Sheptow insisted the argument wasn’t far-fetched because some patients were helped. “The whole point of Medicare is to provide seniors with medically necessary treatment,” he said. “There may have been fraud but Medicare doesn’t suffer a loss when seniors obtain medically necessary treatment.”
Marra also quizzed Assistant U.S. Attorney Carolyn Bell when she suggested that Melgen should be punished severely for the pain he caused patients by giving them unnecessary injections and laser treatments in their eyes. Marra questioned whether she would make the same argument if a doctor was accused of giving people unneeded shots in the arm.
“My reaction to a shot in my eye - it sounds horrible,” Marra acknowledged. “But I’m not sure it’s any different than a shot in the arm. It sounds more disgusting but I’m not sure it is.”
Bell reminded Marra that patients testified that the eye injections were painful. Further, she said, because they didn’t have wet macular degeneration, they didn’t need the drug. Experts, she said, also testified that the unnecessary laser treatments scarred eye tissue, creating blind spots.
“An injection into your eye is qualitatively different,” she said, adding that an injection cost at least one patient the sight in his healthy eye.
Menchel countered that Melgen tried to help people who were losing their eyesight to a variety of maladies. “These patients had very sick eyes,” he said.
Whether Marra ultimately buys the defense or prosecution arguments is key to Melgen’s fate. Under federal sentencing guidelines, the more egregious his actions the more punishment he will receive.
Given the complexities of the case, Marra said he will need time to review the issues. He said it is unlikely he will sentence Melgen on Thursday.