In August the 5th Circuit U.S. Court of Appeals upheld Dr. Mehmood Patel’s 2008 health care fraud conviction and in November declined to reconsider the case. The former cardiologist had been seeking to remain free while he asks the U.S. Supreme Court to review the case, but prosecutors who have been fighting that request got their way last week when the appeals court said he must begin serving the sentence. Patel is to report to prison Dec. 17.
In late 2008 a jury found that between February 2001 and January 2004, Patel defrauded Medicare, Medicaid, and private insurers by seeking reimbursement for “medically unnecessary” procedures. Prosecutors said he fraudulently billed the government and private insurers more than $2 million. The jury convicted the former cardiologist on 51 of 91 counts of health care fraud. The initial 91 counts involved 74 different patients.
Federal prosecutors said Patel’s actions caused complications and serious harm to some patients who were subjected to angiogram, angioplasty and stent procedures they did not need. They said the doctor lied to patients about their medical conditions, performing most of these unnecessary tests and procedures at Our Lady of Lourdes and Lafayette General Medical Center.
By far the busiest cardiologist in town, according to prosecutors, Patel did not slow down until after his clinic, Acadiana Cardiology, was searched by investigators who had been tipped off by a whistleblower. From 1999 - 2003, Patel was the second highest biller in the entire state of Louisiana, according to the court record. “... there was evidence that Patel abruptly changed course, evincing possible consciousness of guilt, after the government executed its search warrant,” the appeals court writes. “He ordered fewer procedures, revised existing patient medical findings, and cancelled already scheduled stentings.”
In his appeal, Patel challenged just about every aspect of the prosecution, from his indictment to his sentence. Among the arguments in his appeal, which the 5th Circuit said touched “nearly every stage of the proceedings in the district court,” was that the district court coerced the jury by invoking what’s known as the “Allen” charge. U.S. District Judge Tucker Melancon used the Allen charge when he asked the deadlocked jury to continue its deliberations. Often called the “dynamite charge” or “hammer charge,” the jury instruction is intended to prevent a hung jury and mistrial by encouraging jurors to make a decision of guilty or not guilty.
According to the appeals court 's August decision:
Trial began on September 17, 2008. It spanned three and a half months. The government had at least one expert testify about each of the 91 procedures. The case first went to the jury on December 17. On December 22, the court dismissed the jury foreperson and seated an alternate. The jury was instructed to “begin its deliberations anew.” Then, in the early afternoon of the fifth day of the new deliberations, the court received a jury note indicating a possible deadlock. The court directed the jurors to review their prior instructions concerning deliberations. Jurors sent a similar note two hours later. The court responded with the Fifth Circuit’s pattern Allen charge. On the sixth day, after seven more hours of deliberation, the jury returned a verdict. It convicted Dr. Patel on 51 counts of health care fraud and acquitted him on the other 40 counts.
When a jury indicates that it is deadlocked, district courts have broad discretion to invoke the Allen charge. “The district court was appropriately hesitant to administer the charge and did so only after reflection and care,” the appeals court writes. “We find no abuse of this broad discretion in the district court’s giving of the charge.” The judges also noted the significance of the jury returning a discriminating verdict by acquitting Patel on 40 of the indicted counts.
Patel was sentenced to the statutory maximum 120 months in prison on each count, to run concurrently, followed by three years supervised release. He was ordered to pay the maximum guidelines fine of $175,000, in addition to the costs of incarceration and supervision, as well as $387,511 in restitution and a $48,631 forfeiture. At the time of his conviction, the court estimated his net worth as $6.4 million.
In early 2008 Lafayette General Medical Center settled civil lawsuits brought by Patel’s former patients for $1.8 million. The year before, Our Lady of Lourdes, where Patel did most of his work, paid $7.4 million to settle similar suits. LGMC also paid the federal government $1.9 million to settle claims it defrauded Medicare, Medicaid and other federal and state health plans from 1999 to 2003 by billing them for medically unnecessary procedures performed by Patel. Lourdes settled with the feds in August 2007 for $3.8 million.
At least two whistleblowers went to officials with information on Patel, including Neil Kinn, a registered nurse doing contract work at Patel’s clinic, and another local cardiologist, Dr. Christopher Mallavarapu.
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