Dr Pon is Entitled to a New Health Care Fraud Trial

Several years ago, Dr. David Pon went to trial having been accused of health care fraud based on certain expensive laser treatments he was providing to his patients to treat an ocular disease known as wet age related macular degeneration. The Government’s theory was a medical necessity theory. This author has previously addressed the fundamental problems with medical necessity health care fraud prosecutions. See https://feldmanpllc.com/medical-necessity-defense-attorney/; and https://feldmanpllc.com/health-care-fraud-defense-attorney/; and https://www.medpagetoday.com/practicemanagement/medicolegal/66899

The theory in Pon’s case went: Dr. Pon knew that the patients did not have macular degeneration and he treated them with an array of ineffective laser treatments anyway.

 Last week those convictions were upheld.

However, Judge Martin issued a 10 page dissent in the case opining that Dr. Pon should have been entitled to a new trial. Why? Because Dr. Pon was not permitted to put on a sur-rebuttal case.

So, first, what is a sur-rebuttal case?

The Government puts on its case in chief and its evidence and witnesses. Then, if the defense wants to put on a case, they may do so and introduce witnesses and evidence. The Government is then entitled to a rebuttal case to rebut the defense case. Usually, that is the end of the any evidence at trial and the extent of any evidence jurors will consider when they deliberate.

However, in certain rare cases, like Dr. Pon’s case, the defense seeks to put on a sur-rebuttal case. In this Circuit, a sur-rebuttal case is permitted where (1) the government's rebuttal testimony raises a new issue, which broadens the scope of the government's case, and (2) the defense's proffered surrebuttal testimony is not tangential, but capable of discrediting the essence of the government's rebuttal testimony." United States v. Moody, 903 F.2d 321, 331 (5th Cir. 1990); see also United States v. Durnin, 632 F.2d 1297, 1301 n.8 (5th Cir. Unit A 1980); United States v. Ming Pon, No. 17-11455, at *78 (11th Cir. June 29, 2020) (Martin J., dissenting)

In Pon, the rebuttal evidence concerned treatment of J.L., a patient who testified during the defense case. The substance of J.L.'s testimony was that Mr. Pon treated J.L. for detached retinas even knowing J.L. did not have insurance, that Pon restored vision in J.L.'s right eye but not his left, and that Pon later diagnosed J.L. with wet macular degeneration and treated him with the laser method. On cross examination, the government asked J.L. whether Mr. Pon had performed any tests on his left eye. J.L. said he had not. J.L. reiterated on redirect examination that Mr. Pon hadn't treated his left eye. After the defense rested, the District Court allowed the government to put on rebuttal, including a spreadsheet made by the government's investigator showing Mr. Pon billed Medicare for treating J.L.'s left eye on more than fifty occasions between 2004 and 2015. All told, the services added up to $19,350 worth of Medicare charges over eleven years.

According to Judge Martin, “[u]p to the point the government put the spreadsheet into evidence, nothing would have indicated to Mr. Pon that he had to defend his reasons for treating J.L.'s left eye. For that matter, he would have had no reason to prove that those treatments even happened.” United States v. Ming Pon, No. 17-11455, at *79-81 (11th Cir. June 29, 2020). Yet with the spreadsheet, “the government injected an entirely new, unrelated, and uncharged fraud. The clear implication of the rebuttal evidence was that Mr. Pon fraudulently billed Medicare not only for diagnosing and treating nonexistent wet macular degeneration, but for other procedures as well. This broadened the scope of the government's case. United States v. Ming Pon, No. 17-11455, at *79-81 (11th Cir. June 29, 2020)

In his proffer regarding what the sur-rebuttal evidence concerning J.L’s left eye might show, Dr. Pon explained that he did in fact treat J.L.'s left eye and that he had a medical reason for doing so—namely, preventing blindness in J.L.'s right eye. The dissent found that, if this evidence were believed, then it would “squarely rebut the government's contentions that Mr. Pon never treated J.L.'s left eye but billed for it anyway” and that “the limitation of surrebuttal on this record violated Mr. Pon's right to present a defense.” United States v. Ming Pon, No. 17-11455, at *81 (11th Cir. June 29, 2020)

Judge Martin determined that by putting the spreadsheet into evidence and by limiting sur-rebuttal “so far as the jury knew Mr. Pon had no explanation at all for treating a blind eye. And so far as we know, the jury went back to their deliberations thinking Mr. Pon was a crook because of it.” United States v. Ming Pon, No. 17-11455, at *89 (11th Cir. June 29, 2020). For this reason, he opined that the error was not harmless and that “I must say this error was harmful. I believe Mr. Pon should get a new trial.” United States v. Ming Pon, No. 17-11455, at *89 (11th Cir. June 29, 2020).

In reaching this conclusion, it also worth noting that Judge Martin was critical of the appellate court’s willingness to invoke the harmless error doctrine especially where, as here, he believed the error deprived Dr. Pon of a constitutional right. In evaluating the efficacy of the harmless error doctrine and its application to cases like Dr. Pon’s case, Judge Martin said:

It is important to remember that harmless error review is no substitute for a jury trial. The Sixth Amendment demands no less. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury."). A reviewing court treads on the right to a jury trial when it uses harmless error review to "'become in effect a second jury to determine whether the defendant is guilty.'" Neder, 527 U.S. at 19, 119 S. Ct. at 1839 (quoting Roger J. Traynor, The Riddle of Harmless Error 21 (Ohio State Univ. Press 1970)). And there are practical consequences, too. Whenever we invoke harmless error, "the deterrent force of a reversal remains unfelt by those who caused the error." Harry T. Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1170 (1995).

We should be particularly wary of invoking "overwhelming evidence" to hold an error harmless. "[T]he Constitution does not trust judges to make determinations of criminal guilt." Neder, 527 U.S. at 32, 119 S. Ct. at 1844 (Scalia, J., concurring in part and dissenting in part) (emphasis omitted). The right to a jury trial forbids us from doing so. This is why a federal judge may direct a judgment of acquittal but never a judgment of guilt. See Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106 (1986); Fed. R. Crim. P. 29. We owe it to defendants who come before us to ask ourselves always whether a rational jury could acquit, and never whether we ourselves think the defendant guilty.

United States v. Ming Pon, No. 17-11455, at *84-85 (11th Cir. June 29, 2020).

         Ultimately, the trial, when viewed through the lens of Judge Martin’s dissent amply demonstrates that Dr. Pon’s case was a close case. That jurors could have acquitted Dr. Pon had they heard his sur-rebuttal testimony. At trial, there may have been evidence that appeared overwhelming of Dr. Pon’s use of medical treatments that were supposedly ineffective and did not comport with the practices used by other ophthalmologists. An expert testified from a a review of 500 of Dr. Pon’s patients. Other doctors testified. And, 11 patients testified about their treatment.

Nonetheless, there was also evidence at trial from approximately a dozen patients that testified about Dr. Pon’s competence and their satisfaction with his treatment. One witness, who has advanced public health degrees and background as a nurse, testified she learned from Mr. Pon to identify feeder vessels on a diagnostic monitor during Pon's treatment of her husband, who Pon diagnosed with wet macular degeneration. Another, a laser nurse, likewise testified she could see the problem areas Mr. Pon identified and that her vision improved with laser treatment.

At this point, it could easily have been characterized as a battle of the experts or a battle of the patients which could have resulted in an acquittal given the government’s high burden of proof. After all, in a health care fraud prosecution, the government must show much more than malpractice or poor decision making. Such decisions are reserved for civil actions and boards of medicine. Here, instead, Dr. Pon’s intent, or lack thereof, was on trial. So, to deprive Dr. Pon of critical sur-rebuttal evidence that would have told the jurors an entirely different story about patient J.L.’s left eye was reversible error warranting a new trial. Even more important, the rebuttal evidence focused on other procedures leaving the impression with the jurors that – Dr. Pon was not just doing this with WET macular degeneration patients, he was doing it with other patients. Such an impression, when left unanswered and unmitigated, would have easily moved a jury and/or their deliberations from say “tie goes to the defendant” to, possibly, beyond a reasonable doubt sufficient to have convicted Dr. Pon.

This author applauds Judge Martin for his dissent. As Judge Martin said: “surrebuttal … allows criminal defendants to present their version of any new issues that arise in the course of the government's rebuttal. Juries sometimes cannot "decide where the truth lies" if they hear only the government's side of a rebuttal issue. Washington, 388 U.S. at 19, 87 S. Ct. at 1923; United States v. Ming Pon, No. 17-11455, at *77-78 (11th Cir. June 29, 2020). Every defense lawyer in a fraud case should consider, where applicable, putting on a sur-rebuttal case.