Melissa L. Jampol, Member of the Firm in the Health Care & Life Sciences and Litigation practices, in the firm’s New York office, was quoted in Law360, in “Gov’t Esformes Victory Still Misses Tricky Fraud Target,” by Carolina Bolado. (Read the full version – subscription required.)
Following is an excerpt:
The guilty verdict for Miami nursing home mogul Philip Esformes lacked any substantive health care fraud charges, even after the government consistently billed the case as the largest health care fraud case in history, a stinging example of how difficult it can be to secure such a conviction.
A Florida federal jury on Friday found Esformes guilty of paying and receiving kickbacks, money laundering, bribery and obstruction of justice after a hotly contested two-month trial in Miami but failed to reach a decision on six counts, including one of conspiracy to commit health care fraud and wire fraud. It was the only health care fraud count left in the case and the only one in which jurors were required to find that Esformes intended to defraud the government.
Though experts called the verdict a decided win for the government, the lack of a health care fraud conviction could affect both how much forfeiture prosecutors can seek and what kind of sentence Esformes will receive.
“It’s not the country’s largest health care fraud case at the end of the day,” said Melissa Jampol, a former federal prosecutor who now does white collar defense in health care at Epstein Becker Green. “It’s a conviction, and there are health care-ish things. But this seems more like a money laundering and bribery case.” …
By the time jurors were sent to deliberate, only one of the health care fraud counts remained; the other two were dismissed just after the government rested its case. U.S. District Judge Robert Scola had expressed consternation over prosecutors’ two examples in the indictment to show that Esformes had caused the submission of false and fraudulent claims to Medicare; both related to a patient who was shown during testimony to have lived at an assisted living facility that was not owned by Esformes at the time.
Jampol called this a “cautionary tale” to prosecutors regarding the health care fraud statute, which she said is poorly worded and a difficult one to charge. Even when jurors, like those in the Esformes case, find a defendant guilty of a fraud’s component parts, they could have difficulty reaching a verdict on fraud itself.
“The mens rea to commit this crime is ‘knowingly and willfully,’ which is the highest standard in the law,” she said. “That’s exactly where defense attorneys go very often. Because a defendant could be negligent, but that’s not willful.”
But as she and other attorneys noted, even if the willfulness requirement for health care fraud is difficult to meet, there are other ways the government can nab defendants. In the Esformes case, that was primarily on bribery and money laundering charges.