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BRIEF IN SUPPORT
Dr. Lewis is a pain interventionalist licensed in the State of Michigan. ECF 1 at 1-6. He worked at The Pain Center USA, PLLC, and Interventional Pain Center, PLLC, treating patients suffering from chronic pain. Id. The Government alleged that in or around January 2013 through November 2018 Dr. Lewis and his colleagues at both these Pain Centers conspired to commit health care fraud in violation and conspired to unlawfully distribute controlled substances
AUSA Brandon Helms:
“…Early on, I realized that I did not enjoy the memorization required for biology. I continued with chemistry because I liked the concepts..”
The Government also alleged that Dr. Lewis was guilty of the underlying substantive charges, claiming that he submitted fraudulent claims to the Medicare program and unlawfully distributed controlled substancesAs part of Counts 30-31 and 53, Dr. Lewis was also charged with aiding and abetting .
The Government tried the case based on its overarching theme that Dr. Lewis and his colleagues were billing Medicare for injections for pain that were not medically necessary and tied these medically unnecessary injections to their prescribing of controlled substances, thereby prescribing outside the usual course of professional practice, not for a legitimate medical purpose.
Case 2:18-cr-20800-SJM-APP ECF No. 459, PageID.5235 Filed 08/18/22 Page 18 of 23
AUSA BRANDON HELMS AND THE “GIFTS” OF GAB
AUSA Brandon Helms wanted to be a doctor, but didn’t enjoy Chemistry and Biology. Yet, Mr. Helms has a gift of gab, and goes to law school!!!
So how does Helms who disliked, “the memorization required for biology,” manage to end up in the United States Attorneys Detroit Office Healthcare Fraud Division, prosecuting physicians, pharmacists and dentists. ???
QUESTION: Tell us about your path to DePaul Law and the legal profession?
Mr Helms: “When I started college, I intended to become a doctor. I enrolled as a chemistry and biology double major at my undergraduate institution, Carthage College in Kenosha, Wisconsin.
Early on, I realized that I did not enjoy the memorization required for biology. I continued with chemistry because I liked the concepts, but I was not interested in becoming a bench chemist.
Trying to figure out my next step, I knew I liked to write and debate, so I added political science as a minor and later applied to law schools. When I started my reading assignments prior to the start of my 1L year, I knew I had made the right decision.”
A. The Government’s Charges Against Dr. Lewis were Frivolous
Dr. Lewis was charged with conspiring to commit health care fraud and to unlawfully distribute controlled substances. To prove Dr. Lewis conspired to commit healthcare fraud, the Government had to show that: 1) Dr. Lewis and his colleagues, in some way or manner, came to a mutual understanding to try to commit healthcare fraud; and 2) that he knowingly and voluntarily joined in the conspiracy.
To prove Dr. Lewis conspired to distribute controlled substances unlawfully, the Government had to show that: (1) Dr. Lewis and his colleagues, in some way or manner, came to a mutual understanding to try to violate drug laws, (2) had knowledge and intent to join the conspiracy, and (3) participated in the conspiracy.
The Government’s Expert Report from Neel Mehta
The Government also tried to support its overarching narrative with testimony from its expert witness Dr. Neel Mehta. Dr. Mehta’s testimony was based on his expert report which contained his opinions on six (6) of Dr. Lewis’ patients to determine whether Dr. Lewis was administering medically unnecessary injections for pain as well as whether he was unlawfully prescribing controlled substances.
However, at trial, Dr. Mehta only provided his opinion on Dr. Lewis’ treatment of two (2) patients, and it was further revealed that his report – a report the Government based its charges on – was inaccurate and fraught with error.
“…the impact of all these errors was on full display at trial. On cross- examination, Dr. Mehta testified that Mr. Peterson testing negative for opioids after Dr. Lewis had prescribed him these drugs was a “red flag…”
Specifically, Dr. Mehta testified his report contained at least 13 to 14 errors that he had not noticed until a week before trial. In fact, Dr. Mehta testified he copied and pasted entries in his report related to one patient to other portions of his report related to another patient.
Perhaps, this is why the Government, in failing to effectively review the Medicare claims and MAPS data, argued that Dr. Lewis’ practice “…was a one-size-fits-all medical practice. If a patient came to the Pain Center where the defendants worked, they received injections in their back, a back brace if their insurance would pay for it and a prescription for pain medication.”
The Government could not have possibly determined that the practice was a “one size fits all” practice after reviewing (3) patients prior to charging Dr. Lewis and (6) patients prior to trial. The government’s position was not in good faith.
Even more concerning, in the second page of Dr. Mehta’s report, he explains that he used a civil standard of care when assessing whether Dr. Lewis prescribed controlled substances outside the course of professional practice in violation of § 841(a). See Expert Report at 2.
Clearly, this expert report the Government paid $25,000.00 for using taxpayers’ money was nowhere near enough to form a reasonable legal basis to charge Dr. Lewis with the charges listed in the Government’s indictment. (asking “Q: How do you feel about charging the government $25,000.00 for a document that at least contains 14 mistakes? A: I feel terrible.”). Further, the Government was fully aware of this because it reviewed Dr. Mehta’s expert report at least five (5) times before trial. Id. at 67. Exactly like the Medicare claims and
The Government’s Confidential Informant Henderson Butler
The Government also used a confidential informant, Henderson Butler, to try to support its overarching narrative at trial. Mr. Butler has a long history of abusing crack cocaine and admitted to purchasing cocaine from a dealer on the street while serving as a confidential informant for the Government. Mr. Butler also admitted the Government tested his urine regularly and was aware that he was abusing crack cocaine over the course of its investigation. Id. The Government didn’t seem to care and continued to use Mr. Butler as a confidential informant in this case. Id. While this in and of itself may not be a problem, the Government’s lack of oversight of Mr. Butler, while fully aware he was abusing crack cocaine, was a serious problem that significantly undermined the Government’s case.
To be sure, at trial, Mr. Butler testified that he informed Dr. Lewis of fictitious symptoms which exceeded those that the Government instructed him to fabricate. Yet, even though Mr. Butler continued to do this, the Government kept him as a confidential informant, trying to build their case based on the excessive/additional symptoms he reported to Dr. Lewis. ECF 416 at 30-32. These excessive/additional symptoms exceeded the scope of the Government’s investigation, thereby significantly undermining its claims that Dr. Lewis prescribed controlled substances outside the scope of professional practice.
Accordingly, the Government’s mismanagement of Mr. Butler is yet another error in its investigation further supporting that the charges against Dr. Lewis were “frivolous” because the Government lacked a reasonable legal basis for the charges and did not have a reasonable expectation of attaining sufficient material evidence by the time of trial. Dr. Lewis should therefore be awarded his attorney’s fees and his costs for defending himself at trial.
The Jury’s Acquittal Dr. Lewis and His Colleagues on Fifty-Six Counts
Though the acquittal, without more, is not enough for the recovery of attorney’s fees under the Hyde Amendment, in this case, it was not only Dr. Lewis that was acquitted by the jury. See United States v. True, 250 F.3d 410, 424 (6th Cir. 2001) (holding acquittal alone is not the standard for an award under the Hyde Amendment); (holding an acquittal, without more will not lead to recovery under the Hyde Amendment); United States v. Gilbert, 198 F.3d 1293, 1303 (11th Cir. 1999) (holding Hyde Amendment requires more than an acquittal). As discussed, the jury acquitted Dr. Lewis and all his colleagues across all fifty-six (56) Counts the Government charged in its indictment. ECF 456. This was unsurprising though given the fatal flaws in the Government’s evidence previously discussed, and because the Government did not provide a single piece of evidence at trial to prove that Dr. Lewis and his colleagues had an agreement and participated in a conspiracy.
Dr. Lewis was simply a pain interventionalist who took his responsibility to treat patients seriously and his commitment and dedication to his patients did not go unnoticed. (See Ex. O). After assessing Dr. Lewis’ case “as an inclusive whole”, the jury’s decision across all fifty-six (56) Counts confirms what was discussed throughout this motion, that the Government’s evidence, which it was in possession of prior to trial, was entirely insufficient to sustain even one conviction at trial. In other words, the Government was in possession of evidence that made its charges “so obviously wrong as to be frivolous”.
Accordingly, the charges against Dr. Lewis were “frivolous” because the Government lacked a reasonable legal basis for the charges and did not have a reasonable expectation of attaining sufficient material evidence by the time of trial. Dr. Lewis should therefore be awarded his attorney’s fees and his costs for defending himself at trial.
For the foregoing reasons, Dr. Lewis should be awarded his reasonable attorney’s fees and the cost involved in his defense, and the Government should reimburse him $367,468.10.
“AND NOW THEY ARE FREE“
Dated: August 18, 2022, excerpts from the Brief of Atty. Ronald Chapman
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