Sixth Circuit: Cardiologist’s Right to Due Process Violated Where District Court Ordered Government to Not Disclose Third Party’s Expert Evaluation of Medical Care Provided by Him
by Douglas Ankney
The U.S. Court of Appeals for the Sixth Circuit ruled that cardiologist Richard E. Paulus’ Fifth Amendment right to due process was violated when the district court ordered the Government to not disclose to Paulus a third party’s expert evaluation of medical care Paulus had provided to his patients.
Paulus performed an incredible number of angiograms while employed at King’s Daughters Medical Center (“KDMC”). The Government charged Paulus with numerous crimes, including health-care fraud, based on allegations that he intentionally overstated the amount of arterial blockage shown in the angiograms, unnecessarily inserted stents into the arteries, and then billed Medicare and other insurance companies for the unnecessary procedures.
Prior to trial, the Government informed Paulus that KDMC’s experts had flagged 75 of his procedures as “unnecessary.”
But at trial, the Government called three of its own expert witnesses who had reviewed Paulus’ work: (1) Dr. Ragosta, who said Paulus overstated the amount of blockage in 62 of the 250 to 300 cases he reviewed; (2) Dr. Morrison, who said more than half of the 11 procedures he reviewed were unnecessary; and (3) Dr. Moliterno, who asserted that all of the stent procedures he reviewed were unnecessary.
The jury deadlocked twice before convicting Paulus. But the district court vacated the convictions, finding insufficient evidence of fraudulent intent. However, the Sixth Circuit reversed, reinstated the jury’s verdict, and remanded for sentencing.
After the remand, Paulus learned of the events surrounding a document known as the “Shield’s Letter.” According to the letter, before Paulus had been indicted, KDMC had hired a team of independent experts to review Paulus’ work. KDMC’s experts had reviewed 1,049 of Paulus’ cases and found 75 of his procedures unnecessary. In an attempt to settle the case civilly instead of criminally, KDMC offered to refund Medicare for those 75 cases. But before Paulus was tried, KDMC argued that its expert evaluation and the Shields Letter were privileged and inadmissible.
The Government argued that it wanted to use the letter in its case-in-chief and that it had a duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose the letter to Paulus. The district court discarded the issue of privilege and ruled instead that the letter was inadmissible pursuant to Federal Rule of Evidence 408 and ordered the Government and KDMC “not to disclose” any more information about KDMC’s expert review to Paulus.
After learning of the Shields Letter and associated events, Paulus moved for a new trial, arguing that withholding the information had violated his rights under Brady. The district court denied his motion and sentenced him to five years’ imprisonment. Paulus appealed.
The Sixth Circuit observed that a Brady inquiry has three prongs: (1) the evidence at issue must be favorable to the accused either as exculpatory or impeaching; (2) the evidence must have been suppressed by the prosecution, irrespective of the good or bad faith of the prosecutor; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263 (1999). Prejudice requires a showing that, if the evidence had been disclosed to the defense, there is a reasonable probability that the result of the proceeding would have been different. Id. But if a defendant knew or should have known of the essential facts permitting him to take advantage of the exculpatory information, there is no Brady violation. United States v. Castano, 906 F.3d 458 (6th Cir. 2018).
The Court determined that the withheld evidence was exculpatory for Paulus because KDMC’s experts found only 75 of more than 1,000 (about 7.5%) of the procedures were unnecessary while the Government’s experts had testified that more than 50% were unnecessary. KDMC’s lower percentage supported a finding that the unnecessary procedures were not intentional. Because intent was a close issue in the case (as shown by the jury’s deadlock and by the trial court’s erroneous vacatur based on insufficient evidence of intent), Paulus was prejudiced by the Government’s withholding of the evidence. And since Brady is about the fairness of the trial and not the good or bad faith of the prosecutor, it made no difference that the evidence was withheld solely because of the district court’s order.
The Court rejected the Government’s argument that since Paulus knew KDMC had found 75 of his procedures unnecessary, no Brady violation occurred, i.e., he had the essential facts permitting him to take advantage of the exculpatory information. Paulus had no reason to undertake an investigation to discover the scope of KDMC’s expert review. And even if he had, it is unlikely he would have been granted the evidence since KDMC had previously argued it was privileged, and the district court had ruled it was inadmissible.
Accordingly, the Court vacated Paulus’s convictions and remanded for a new trial. See: United States v. Paulus, 952 F.3d 717 (6th Cir. 2020).
Related legal case
United States v. Paulus
|Cite||952 F.3d 717 (6th Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|