Recently in Eleventh Circuit Category

Georgia Doctor's Health Care Fraud Conviction Reversed on Appeal

August 10, 2011, by The McKellar Law Firm, PLLC

In United States v. Ly, No. 09-12515, 2011 WL 2848477, at *1 (11th Cir. July 20, 2011), the United States Court of Appeals for the 11th Circuit reversed a pro se defendant's conviction when it was apparent that the defendant misunderstood his right to give a narrative testimony without having to be cross-examined by the prosecution.

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Defendant Hung Thien Ly was a medical practitioner who was indicted on 129 counts of writing prescriptions for certain medications "outside the usual course of professional practice and without legitimate medical purpose" under 21 U.S.C. § 841(a)(1) an 21 C.F.R. § 1306.04. Ly claimed that he was indigent and therefore requested court-appointed counsel. The Government opposed the motion, arguing that Ly moved all his assets into his wife's name and was therefore not indigent. The magistrate judge accordingly denied Ly's request. Ly subsequently pled not guilty and, after the magistrate warned Ly of the dangers that came with representing himself at trial, decided that he would still defend his charges pro se.

Ly had no prior legal training or experience in a courtroom. After the prosecution presented their arguments, the court explained that Ly could testify as to what kind of practice he had and how he handled his patients. Ly was unaware that he could testify in narrative form and therefore did not need to be questioned by opposing counsel. After Ly revealed his confusion to the court, the judge did nothing to correct Ly's misunderstanding. Ly therefore chose not to testify on his own behalf and was subsequently found guilty on all 129 counts of health care fraud. Ly then appealed his case, arguing that the district court denied him his right to testify by failing to correct his misunderstanding regarding the availability of narrative testimony.

On appeal, the Government argued that a district court has no duty to act as a pro se defendant's lawyer and therefore had no duty to correct Ly's misunderstanding. The 11th Circuit held, however, that a court has an obligation to protect pro se defendants from inadvertent forfeiture of the right to testify if the court has already engaged in a conversation with the defendant regarding that right. Since Ly had no legal training or courtroom experience, it was reasonable for Ly to believe that direct testimony only allows for a question-and-answer dialogue between an attorney and a witness. Once it was apparent that Ly misunderstood this right, the district court should have corrected Ly. The 11th Circuit also stressed that their holding only applies in situations like Ly's where a court has already discussed with the defendant their right to testify and it is apparent that this right is misunderstood by the defendant.

Atlanta Doctor Indicted for Healthcare Fraud for Allegedly Treating Dead Patients

March 5, 2011, by The McKellar Law Firm, PLLC

An Atlanta, Georgia doctor has been indicted for filing false Medicare and Medicaid claims for patients which he never saw, including some patients who were already dead at the time he claimed to have administered treatment to them. The Atlanta Journal Constitution reports that Dr. Robert Williams was indicted in Atlanta for healthcare fraud and was arraigned yesterday in federal district court.

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According to a press release from the U.S. Attorney's Office in Atlanta, the prosecution alleges that Dr. Williams, during 2007 to 2009, contracted with a medical services company to provide group psychological therapy to nursing home patients. Per the doctor's signature, thousands of claims were submitted to Medicare and Georgia Medicaid seeking reimbursement for group psychological therapy that Dr. Williams claimed to provide to beneficiaries at nursing homes in the Atlanta area. Allegedly, in many instances, the doctor did not actually provide the therapy claimed.

Doctors are typically held to a high standard of conduct due to their position in society. In the aforementioned press release, prosecution representatives claim:

"As a physician, this defendant had a duty to protect his patients and look out for their interests first. He has been charged with crimes that reflect his misuse of his position and the trust placed in him, all at the expense of his elderly patients, Medicare and Medicaid. Dr. Williams allegedly stole Medicaid funds that were specifically allocated for the care of some of Georgia's most vulnerable citizens: the elderly."

If convicted of these healthcare fraud allegations, Dr. Williams is looking at a maximum 10-year sentence, a fine up to $250,000, and likely restitution of amounts improperly taken.

Healthcare Fraud Convictions Can Lead to Lengthy Sentences

October 26, 2010, by The McKellar Law Firm, PLLC

A conviction for healthcare fraud under 18 U.S.C. Section 1347 can carry sentences that range from no jail time to lifetime imprisonment. This vast range of punishment can leave clients (and healthcare fraud defense lawyers) with tremendous uncertainty regarding the potential outcomes of healthcare fraud case. To complicate matters more, the United States Federal Sentencing Guidelines (specifically Section 2B1.1) allow for a similar range of punishment.

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Two recent sentences show the potentially devastating sentences which can be given for healthcare fraud convictions:

1. Last week, a federal court judge handed down a 30-year sentence for a Kansas doctor and a 33-year sentence for his wife after a federal district court jury found the couple guilty of unlawful prescription of drugs, healthcare fraud and money-laundering in a scheme that prosecutors said led to 68 overdose deaths.

2. The Eleventh Circuit Court of Appeals recently upheld a 30-year sentence for a Miami doctor convicted of healthcare fraud, even though the Sentencing Guidelines had provided a maximum punishment of 22 years. Retired U.S. Supreme Court Justice Sandra Day O'Connor, who was a guest judge for the Eleventh Circuit, wrote, " A doctor should be punished more severely than other participants because the doctor is breaching a position of trust and an ethical obligation to put the patient's interest first."

These two cases are definitely at the "high end" of sentences that are handed out for healthcare fraud, but they illustrate the risk that clients encounter when facing healthcare fraud charges. As I indicated in a prior blog post called Healthcare Fraud Investigations to Increase Due to Affordable Care Act, the Government is dedicating more resources to pursue medical providers for healthcare fraud violations, and it appears that they are pursuing maximum possible punishment, both criminally and civilly, for alleged offenders.


Additional Resources
Pill Mill Doctor Gets 30-Year Sentence, UPI.com, October 20, 2010
Ex-high court judge: 30-year term is fair, Miami Herald (Online), October 21, 2010