Dr. Melgen lauded, pilloried during sentencing hearing for practices

Luminaries from Dr. Salomon Melgen’s homeland — including a former Dominican Republic interior minister and the conductor of the island nation’s orchestra — offered glowing accounts of the retinal specialist’s generosity and medical prowess on Tuesday to persuade a federal judge to show mercy when he sentences the physician on 67 charges of health care fraud.

The praise from former Dominican leader Francisco Almeyda and conductor Jose Antonio Molina, who lauded Melgen for helping him land a previous job as maestro of the Palm Beach Symphony, were tempered by accounts from several of the doctor’s former patients.

“I want Dr. Melgen punished to the fullest extent of the law. He is a menace to society,” said Randy Frick, in a letter read to U.S. District Judge Kenneth Marra by his attorney. In the letter, Frick recounts the painful eye injections his mother endured unnecessarily before she slipped into dementia.

Marra listened silently to the emotional pleas from the wealthy, politically connected Palm Beach County doctor’s critics and his supporters, many of whom addressed Marra in Spanish with the help of an interpreter. The judge said he had already read letters they had sent him, including those from dozens of former patients who claimed Melgen restored their sight.

The tougher task facing Marra will be deciding whether to believe federal prosecutors who claim the 63-year-old doctor bilked Medicare out of more than $107 million by improperly diagnosing and treating scores of patients for age-related wet macular degeneration. The disease slowly robs the elderly of their sight.

Prosecutors also claim he raked in money from private insurers, driving the total loss to as much as $170 million.

Since federal sentencing guidelines give hefty weight to the amount of money lost to fraudulent activity, prosecutors say Melgen deserves a 30-year sentence for his treatment of patients at his clinics in West Palm Beach, Delray Beach, Wellington and Port St. Lucie.

Defense attorneys Matthew Menchel and Kirk Ogrosky contend prosecutors are inflating Medicare’s loss to increase Melgen’s punishment. They are pushing for a much lighter sentence, claiming a jury in April convicted Melgen on the basis of his treatment of a fraction of his more than 2,200 patients. Based on the evidence, they calculate the loss at about $125,000.

Further, they insist, prosecutors are ignoring that Melgen repaid Medicare $10 million when he lost a long-running legal battle over his practice of using one vial of the drug, Lucentis, to treat more than one patient, a practice known as multi-dosing.

Wearing a blue prison jumpsuit, with his arms and legs shackled, Melgen looked pale and far older than he did during the roughly seven-week trial in the spring. Since then, he has also been tried on influencing-peddling charges in New Jersey with his longtime friend, U.S. Sen. Robert Menendez. After a roughly two-month trial, the New Jersey jury deadlocked on whether Melgen and the powerful Democrat engaged in a mutually beneficial bribery scheme.

Turning the sentencing hearing into a mini-trial, Assistant U.S. Attorney Carolyn Bell called a Lakeland-area retina specialist to debunk Melgen’s insistence that none of his patients was injured by his practices. Dr. Adam Berger testified that giving patients unnecessary injections for a disease they didn’t have was dangerous. “It’s reckless,” he said.

Records from Medicare showed that Melgen led the nation among retinal specialists who submitted claims for treating a rare eye infection linked to injections, said Assistant U.S. Attorney Roger Stefin. From January 2008 through December 2013, Melgen sought reimbursement for treating 315 patients for the infection, roughly 13.8 percent of his caseload. The national median during those years was 0.77 percent, said FBI analyst Jennifer Minton.

To combat Berger’s allegations that Melgen’s methods harmed patients, Menchel quoted a statement from a prosecution expert, who reviewed 302 of Melgen’s patients’ charts and offered damning testimony against Melgen during the trial. According to Menchel, retired retinal specialist Dr. Robert Bergen told FBI investigators: “I’m not sure damage is a slam dunk. The fraud is a slam dunk.”

But Berger disputed defense attorneys’ claims that Melgen was innovative because he used Lucentis to treat people with eye diseases caused by diabetes years before the drug was approved for that use. “I think that’s an absurd statement,” Berger said. “It’s coming back after the fact to find an excuse … for what you did,” he said.

Under questioning by Menchel, Bergen acknowledged that some doctors had begun using Lucentis and similar drugs to treat diabetes-related eye ailments before they were approved for that use by Medicare. He further acknowledged that he hadn’t reviewed any of Melgen’s patient charts so didn’t know the extent, if any, of his patients’ injuries.

Berger is no stranger to courtrooms. He helped the FBI build a case against Leesburg eye doctor David Ming Pon, who was also charged with defrauding Medicare for falsely diagnosing and treating people for wet macular degeneration. Convicted in 2014 of 20 counts of health care fraud, Pon is serving a 10-year prison sentence and was ordered to repay Medicare $7 million.

Melgen’s complex sentencing hearing, that attracted dozens of his family, friends and supporters, is scheduled for three days. But both sides told Marra it could wrap up today.

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