Dallas Morning News, Kevin Krause, www.dallasnews.com, February 21, 2019
They’re medical innovators and pioneers, their attorneys said, who saved some lives and improved many others.
The surgeons brought patients to a “state-of-the-art” Dallas hospital called Forest Park Medical Center.
But did they illegally put their own financial interests before everything else, including their patients? That’s the basic question before jurors in the Forest Park Medical Center bribery case during opening statements Thursday in a packed Dallas federal courtroom.
Assistant U.S. Attorney Andrew Wirmani told jurors that the doctors acted out of pure greed, making medical decisions to “line their own pockets.” The bribes and kickbacks, he said, were not bags of cash exchanged in dark alleys. Rather, the hospital gave the doctors financial perks in the form of paid business expenses — expensive advertising to promote their practices, he said.
And the conspirators used fake leases, sham companies, phony job titles and fake consulting agreements to hide the mutual enrichment scheme, Wirmani said. For some of the surgeons, it came to between $3.5 million and $6 million in total profits, he told jurors.
In exchange for the billboard, internet and TV ads, the doctors had to bring a certain number of lucrative surgeries to the now-defunct Forest Park, Wirmani said. Common sense dictates that “strings were attached,” he said. It was based on patient volume; the more patients a doctor brought to Forest Park, the more money they earned, he said.
And when the medical procedures fell short, the payments dried up, Wirmani said.
“It’s about treating patients like a commodity,” Wirmani told jurors.
The Forest Park trial is one of the largest such cases in the nation and is considered a test case for future prosecutions. It is being closely watched by many in the healthcare industry. That’s because the government is trying to make a bribery and kickback case involving not federal healthcare dollars, but private insurance.
Many health care lawyers have advised doctors and other medical professionals over the years that they can set up such compensation agreements that otherwise might be illegal under Medicare and other federal insurance programs.
Some defense attorneys in the Forest Park trial disputed on Thursday that marketing payments were based on patient volume.
Forest Park’s practice of illegally buying surgeries “rigged” the system, killed competition and led to unnecessary and overpriced procedures that insurers had to pay for, driving up everyone’s healthcare costs in the process, Wirmani told jurors.
It was also a breach of trust between patients and doctors, he said.
Health care lawyers are expected to play a big role in the trial.
Defense attorneys said their clients cleared the “marketing agreements” with their health care lawyers, proving that they lacked any intent to commit a crime. The attorneys said they plan to call expert witnesses who will explain that the arrangements were perfectly legal.
But Wirmani told the jury that the defendants ignored legal advice from both in-house and outside attorneys, who warned them about accepting anything of value in exchange for patient referrals.
Some defense attorneys told jurors the arrangements were “joint marketing” contracts that benefited both Forest Park and the referring doctors. Such mutually-beneficial deals are commonplace in the medical industry, they said.
Free money?
With every seat in the courtroom taken, Wirmani told the jury the case consists of bribe payers, bribe receivers and “facilitators” who made it all happen.
A total of 21 people were charged in 2016 in the $200 million health care scheme, in which $40 million in bribes and kickbacks were paid to doctors, recruiters and others for drumming up patients for the hospital, according to the 47-page indictment.
Other defendants, including some surgeons, have pleaded guilty and are expected to testify for the government during the trial, which could last two months. Nine defendants are on trial.
Forest Park purposely stayed out of insurance networks so it could charge more, Wirmani said. And it illegally waived patient co-pays for the overpriced procedures — to avoid complaints that might uncover the scheme, Wirmani told jurors.
Wirmani said the advertising expenses Forest Park picked up made the doctors’ practices “explode.”
“They’re all over the television. All over billboards,” he told jurors. “What was this money for? Was it free money?”
He answered his own question: No, it was for patient surgeries.
But the payments had to be made to look legitimate, he said. So “sham” agreements were drafted, he told jurors.
“You can’t just pay a doctor for their cases. It’s too obvious,” Wirmani said.
Blessed by lawyers
Defense attorneys told jurors they were told only part of the story.
Some who represented lower-level defendants blamed their clients’ bosses.
“Everything she did, she thought was on the up and up,” said Phillip Hayes, who is representing a former Forest Park employee, Carli Hempel. “The only thing she did wrong was to trust the wrong people.”
“He simply did his job,” said Sarah Wirskye, attorney for Jackson Jacob, who handled hospital business. He did “what his boss told him.”
Paul Coggins, a former U.S. attorney in Dallas, told jurors his client, Dr. Douglas Won, is a “visionary” who developed special medical techniques to shorten surgeries and minimize pain, infection and recovery.
Coggins said his client received legitimate marketing payments, not bribes, from “actual companies.”
William Meier, considered a “rock star” in the health care law community, advised Won what to do, Coggins said.
He said Won performed a “significant” number of surgeries at other medical facilities and recommended only “what was best for the patient.”
Defense attorney Tom Mesereau arrives for Bill Cosby’s pretrial hearing in Cosby’s sexual assault case at the Montgomery County Courthouse in Norristown, Pa, in August 2017. Mesereau, a high-profile Hollywood lawyer best known for winning an acquittal in Michael Jackson’s 2005 child molestation trial, is representing a doctor in the Forest Park Medical Center bribery trial in Dallas.
“He has always put the patients first,” he said. “Never has he tried to steal from a soul.”
Mesereau said marketing is lawful in the medical industry and that his client is “bewildered” to be in court as a defendant in the case. He said most of Rimlawi’s surgeries were not done at Forest Park.
“You don’t promote, you go out of business,” he said about the marketing agreements. “Everything was done legally.”
Mesereau said Rimlawi intends to testify during the trial and will “address these concerns.” The monthly marketing payments his client received were not based on volume, he said.
“There was no requirement to refer patients,” Mesereau told jurors.
‘Dirty truth’
Tom Melsheimer, attorney for Dr. Nick Nicholson, told jurors the government “cast a very wide net” and in the process unfairly snagged his client, who “belongs in an operating room.”
He called Nicholson one of the “finest bariatric surgeons in the world” and a “pioneer” in the industry who invented and patented a medical device.
Meier also helped Nicholson set up the “co-marketing” arrangement, Melsheimer said, and all the money his client received went toward advertising. Without medical marketing, those in need might go untreated, he said.
Melsheimer said Nicholson continued performing surgeries at Forest Park even after the marketing payments ceased. In fact, the doctor’s average surgeries per month increased at Forest Park after the hospital stopped contributing ad money, Melsheimer said.
Christopher W. Lewis, who represents Dr. Shawn Henry, said the government decided to make everyone a victim in the case, even the jurors, because insurance companies aren’t sympathetic victims.
He said the “dirty truth” is that the case is about corporate insurance profits.
And he disputed the government’s contention that Forest Park paid Henry bribes for patients through a sham real estate consulting contract.
Lewis said Henry did a lot of work under his contract — with a related Forest Park company. Specifically, he helped other doctors with plans to set up their own medical facilities, Lewis said.
And he said Henry increased his surgeries at Forest Park after the 18-month contract expired, proving the contract had nothing to do with patient referrals.
Jim Burnham, attorney for pain doctor Mrugeshkumar Shah, summed up what a lot of defense attorneys said about their clients: “It’s a shame he’s in this courtroom.”