Dermatologist Accused of Performing Thousands of Unnecessary Procedures for Higher Medicare Reimbursement


Dermatology Expert

Court: United States Court of Appeals for the Eleventh Circuit
Jurisdiction: Federal
Case Name: United States v. Rosin
Citation: 263 Fed. Appx. 16

Facts

The defendant was convicted of offenses related to health fraud upon the government for performing unnecessary surgical procedures on elderly Medicare patients (who constituted 95% of his patients over the years) in order to claim a higher rate of reimbursement from the government.

Over a period of almost 30 years, the defendant performed Mohs surgery, a procedure to minimize scarring during removal of tissue with skin cancer, on almost all his patients because of the higher rate of Medicare reimbursement that the government provided for the procedure. He reported cancer on over 99% of the skin biopsies he conducted, even on slides that contained foreign substances, including gum and styrofoam.

The defendant appealed against his conviction alleging prejudicial conduct by trial court and prosecution, misleading jury instructions, and improper evidence. With regard to his allegation regarding improper evidence, the defendant claimed that the court erred in allowing the testimony of the prosecution’s dermatology expert witnesses. He also alleged that he was improperly denied a competency hearing, that there was procedural and substantive unreasonableness in his sentencing, and that forfeiture was excessive.

Discussion

During the defendant’s trial, a statistician at the University of Illinois Chicago compiled records of all of the defendant’s Medicare billings from January 2000 to December 2003 on Mohs surgery procedures. The expert used the data to randomly select 70 of the defendant’s slides which were then sent to both the Government’s experts and the defendant’s experts for review. Both Government experts found cancer in significantly fewer slides than the defendant experts did. Though they differed on the number of slides that contained cancer, the defendant experts were all of the opinion that most of the slides were substandard and unreadable. The plaintiffs’ dermatology experts also testified upon the nature of their own medical practice and this was used to impress upon the jury the impropriety of the defendant’s conduct.

The court noted that the trial court’s failure to prevent the experts from testifying regarding their own practice was prejudicial toward the defendant, but not unfairly prejudicial such that it violated the rules of evidence or the Defendant’s rights under federal law. The defendant contended that the testimony of the plaintiffs’ experts was improper because they had experience in different kinds of practice. The defendant was a solo practitioner with a private practice where he primarily saw elderly patients. The plaintiffs’ dermatology experts worked at academic clinics where they saw patients of all ages. The court noted that these facts affected the weight of the expert testimony and not its admissibility, which is something that could become clearer during cross-examination.

The court also noted that though “the differences between the rates at which the Government’s witnesses and the defendant diagnosed cancer and performed multi-stage Mohs surgery did not provide conclusive proof that some of the defendant’s surgeries were medically unnecessary and fraudulent. Nevertheless, if the testimony of the expert witnesses was believed, the stark differences between their surgical procedures and outcomes as opposed to the defendant’s were probative on the question whether the defendant had defrauded the Medicare program by filing false claims.

Held

The court held that the trial court had not made an error in allowing the testimony of the Government’s expert witnesses on the nature of their own medical practice and how the defendant’s actions differed from theirs. It was further held that expert testimony of a similar practice is admissible if it helps contrast and analyze the actions of the accused.

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