UPDATE: Melgen’s closing defense: Practice maybe malpractice, not fraud

Acknowledging Dr. Salomon Melgen made some mistakes as he struggled to treat more than 100 patients a day at clinics from Delray Beach to Port St. Lucie, his attorney spent more than three hours Tuesday trying to overcome what federal prosecutors called “staggering” evidence that the ophthalmologist bilked Medicare out of as much as $105 million.

The 62-year-old Harvard-educated retinal specialist should not be found guilty of 76 charges of health care fraud for sloppy record-keeping, attorney Matthew Menchel told a federal jury in closing arguments. Further, he said, the doctor shouldn’t be sent to prison for trying innovative measures to help patients who were told their vision loss was hopeless.

While nationally renowned ophthalmologists testified during the nearly two-month trial that they were appalled by Melgen’s methods, Menchel insisted they had “agendas.” The people the jury should listen to are the patients, he said.

“It’s the patients who are experts in blindness,” Menchel said “It’s the patients, not the doctors, who are experts.”

Patients who testified — both for and against the wealthy physician who faces corruption charges in New Jersey with Democratic U.S. Sen. Robert Menendez — didn’t hold any animosity toward Melgen, he said. “Patients smiled warmly at him for a reason,” he said.

The reason, Assistant U.S. Attorney Roger Stefin countered, was that they that they had no idea he was using them as “props” to rake in millions from the federal insurer.

“He wasn’t just aggressive,” Stefin said, using Menchel’s word for Melgen’s tactics. “He was abusive. He took advantage of patients in many cases — people who were elderly, people who were sick, people who were trusting.”

Melgen subjected patients — some who had prosthetic, blind or shrunken eyes — to dozens of unnecessary and sometimes painful tests to “line his pockets with millions and millions of dollars,” agreed fellow Assistant U.S. Attorney Alexandra Chase.

Jurors, who have endured weeks of complex testimony about medical procedures and Medicare regulations, are to begin their deliberations today.

In a bold request, Menchel told jurors that Melgen doesn’t want them to find him guilty of some of the charges while acquitting him of others in an attempt to appease both sides.

“He’s either guilty of all of it or he’s guilty of none of it,” he said. “It’s all or nothing. Do not compromise this case. That would be a disaster for Dr. Melgen.”

Each of the 42 counts of health care fraud carry a maximum 10-year sentence while the remaining charges of filing false claims and making false statements related to health care each can be punished by maximum five-year terms. The charges stem from his treatment of 30 patients — patients Menchel claimed were “cherry-picked” because they were “the worst of the worst.”

Prosecutors disputed Menchel’s contention. Further, they said, while the medical terminology and regulations may be complex, the case is simple.

“This case is black and white and I mean black and white literally,” Stefin said. He paused while one of scores of images that have formed the basis of the prosecution’s case flashed on jurors’ computer screens.

The image showed photos Melgen used to diagnosis the eyes of one patient. The photos showed clear black and white globes. The reason: the patient was blind in both eyes, Stefin said.

Even though the images showed nothing, Melgen billed Medicare for dozens of them over several years, Stefin said. He also billed Medicare for treating the patient for wet macular degeneration, a sight-robbing retinal disease he didn’t have, he said.

And that patient wasn’t unique, prosecutors said, recounting bills Melgen sent Medicare for tests given to patients who had prosthetic eyes or shrunken eyes.

Medicare records showed Melgen billed Medicare far more than any other retinal specialist in the nation. For instance, while his closest competitor nationwide made $33.6 million over six years for a particular procedure, he made $57.3 million. While the median, or typical, amount a retinal specialist made for a certain test was $3,678, he collected a whopping $16.8 million.

Menchel said the analysis of Medicare billing records was far from scientific. Further, he said, Melgen has already had to repay Medicare $8.9 million and has been asked to return another $32 million. National health regulators and federal judges agreed he wasn’t entitled to the $57.3 million he made by using a single vial of Lucentis, a drug used to curb wet macular degeneration, on multiple patients. The practice is known as multi-dosing.

Menchel insisted Melgen’s legitimate fight over his use of Lucentis prompted the criminal investigation. “He put a target on his back,” he said. “It’s one of the reason we’re in this courtroom today.”

Instead of letting go, he said, prosecutors dug in. Not satisfied to let Medicare recoup its money in civil actions, they filed criminal charges. At best, prosecutors are left with a medical malpractice case, he said.

Melgen, he claimed, could be sued by patients for improper treatment. He could lose his medical license. “But,” he insisted, “it’s not a crime.”

Pointing to the thousands of pieces of evidence they have gathered, prosecutors disagreed. The so-called “mistakes” Melgen made were intentional and fraudulent, Chase said.

“We don’t have mistakes here,” she said. “Over and over you have evidence of Dr. Melgen’s deliberate actions to violate the law, to continue to cheat Medicare. Dr. Melgen did it on purpose and he did it deliberately.”

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