Melissa Jampol Quoted in "Experts at Heart of Tension in Health Care Prosecutions"

The rare reversal of a Kentucky heart doctor’s fraud conviction and prosecutors’ appeal highlights the way the U.S. Department of Justice is using experts to dispute the necessity of health care procedures and could add another answer to when a medical outlier can be distinguished from a fraud.

The Sixth Circuit next month will hear the government’s appeal seeking to reinstate the conviction of former cardiologist Richard Paulus. Paulus was convicted in 2016 of health care fraud and false statements for purportedly implanting stents in the arteries of patients who didn’t need them, but the trial judge ruled that prosecutors had not proved their case.

Some in the defense bar view the case as emblematic of larger questions about the use of experts to distinguish between innocent doctors and ones prescribing unnecessary treatment for profit.

Melissa L. Jampol, a former federal health care fraud prosecutor who practices at Epstein Becker Green, says the Paulus case is important amid a trend to charge more suspected health care fraud as crime.

“The prosecution of this doctor and these kinds of cases would have, 10 years ago, been handled on the civil side,” Jampol said. “There have been very aggressive attempts to criminalize this conduct.” …

Jampol noted that because the question of medical necessity relates not only to criminal but also civil health care fraud cases, there is a chance the Sixth Circuit could rule in a way that could send ripples past Paulus’ case. …

All these pieces together make for a case that will be closely watched by attorneys in the health care fraud space, Jampol noted.

“This issue of whether or not there are clear standards of care in a certain subspecialty is unresolved both in the civil realm and the criminal realm, and this case is really going to be looked at for guidance in both,” Jampol said.