April 23, 2013 4th Circuit published opinion

United States v McLean

McLean was convicted of health care fraud based on placing stints into arteries which were medically unnecessary and billing insurance companies and Medicare. The panel affirmed. It rejected his vagueness challenge holding the health care fraud statute is a fraud statute not a medical malpractice statute and a reasonable person would have known lying about the amount of blockage in an artery in order to falsely bill an insurer violates the statute. Additionally, the statute requires willful violation thus negating the vagueness challenge. The panel held that sufficient evidence supported McLean’s convictions because he had a large number of unnecessary stint placements, the overstatements of blockage were significant sometimes as much as 90% higher than actually observed, there was no evidence of negligence by McLean, he falsified symptoms in records and attempted to destroy records. While noting a mere pattern of above average unnecessary stints would be insufficient, the other evidence was enough to convict. The panel also noted McLean’s financial motive in that he received a substantial amount of income from the stint placements and from unneeded follow up care. The panel also held that the government proved a medical standard of 70% blockage which McLean acknowledged in writing and which was not met in many of the placement cases. The panel rejected a Brady claim holding the settlement between the government and the hospital where McLean performed the placements was either not impeaching or of such minimal value that there was no possibility the evidence would have changed the outcome. The panel upheld the trial court’s allowing voir dire of McLean’s expert to remedy s notice violation and held any err in the limits placed on the expert testimony was harmless as the proffered evidence came in through another witness and there was no prejudice from only allowing one basis for the expert’s opinion. Finally, the panel affirmed McLean’s sentence holding the trial court properly included hospital reimbursements received for the improper placements in the loss calculation.

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