Defense: Doc’s $100 million Medicare fraud cost just $64,000

WEST PALM BEACH, Fla. – A politically connected Florida eye doctor convicted of a $100 million Medicare fraud actually cost the government just $64,000 in illegitimate payments, his defenders argued Thursday in an effort to drastically reduce his potential sentence.

Dr. Salomon Melgen’s lawyers portrayed him as ahead of his time, injecting patients with then-experimental drugs that are now approved. Medicare does not pay for experimental treatments, so attorney Josh Sheptow suggested that Melgen may have falsified billing statements to get around those restrictions.

That would still be fraud, but Sheptow said the treatments were legitimate, so the government didn’t lose anything with many of his patients. He also argued that Melgen’s practice of splitting single-dose vials of an expensive medicine into four vials cost Medicare nothing, since reimbursements would not have changed had Melgen followed the rules.

His colleague, Kirk Ogrosky, conceded that $64,000 “sounds ridiculously low,” but he told U.S. District Judge Kenneth A. Marra that it’s what prosecutors can prove by a majority of the evidence. The rest, he and Sheptow argued, is based on faulty suppositions and gross exaggerations that cannot be proven.

Prosecutors will make their arguments later Thursday.

They said Melgen subjected elderly patients to painful tests and treatments they didn’t need, for diseases they didn’t have, to support a vacation home in his native Dominican Republic, lavish trips to Europe and outside business interests.

The amount of loss is important. Melgen could get a life sentence for a $100 million loss, but a minor loss could result in a short sentence. Melgen was found guilty of 67 counts, including health care fraud, submitting false claims and falsifying records in patients’ files.

Melgen is charged separately with bribing New Jersey Democratic Sen. Bob Menendez in exchange for favors including an effort to interceded with Medicare officials investigating his practice. A federal jury in New Jersey hung on that case last month, and prosecutors there have not said whether they will retry them.

Melgen’s attorneys rested much of their case for a short sentence on the doctor’s use of the drug Lucentis between 2008 and 2013. At the time, Medicare approved its use only for wet age-related macular degeneration or ARMD, a retinal disease that can cause blindness.

Lucentis is injected in tiny doses – 0.5 milliliters, or a sixty-fourth of a teaspoon. It comes in single-use vials that contain four times that amount – a sixteenth of a teaspoon. The manufacturer’s instructions say doctors should pull the vial’s entire contents into the syringe and then squeeze out and dispose of the excess – about a thirtieth of a teaspoon – before administering the injection. Medicare reimburses doctors their wholesale cost of $1,900 per vial plus a 6 percent surcharge, $114.

Melgen used each vial for four injections, charging Medicare $2,014 each time. Prosecutors say the three extra injections were theft. Melgen’s attorneys argue that he cost the Medicare program no extra money by avoiding what he would have spent buying more vials.

Melgen also administered the drug to patients who did not have wet ARMD, even as he told Medicare they did. Sheptow suggested Thursday that the patients had diabetic-related sight loss, types of which Lucentis is now authorized for. He said Melgen and other eye doctors knew then that Lucentis worked on the disease and suggested that Melgen gave a false diagnosis to Medicare to be reimbursed for a treatment he knew was effective, even if it wasn’t yet approved. That might be fraud, he said, but Medicare lost no money because its mission of providing medical care to the elderly was met.

The judge said he would not issue a sentence on Thursday because of the case’s complexity. Testimony during the three-day sentencing hearing – and the two-month trial – has centered around complicated and often contradictory medical and statistical evidence. Just Thursday, prosecutors dropped on Marra two six-inch thick binders filled with evidence they say counters the arguments made by Melgen’s attorneys.