Dr. Salomon Melgen may have told Medicare he was treating patients for diseases they didn't have but they did have other eye diseases and benefited from the treatment they received, attorneys Matthew Menchel and Josh Sheptow told U.S. District Judge Kenneth A. Marra. The 63-year-old doctor could face a life sentence on 67 fraud and related counts that he was convicted of last spring. Melgen and Democratic U.S. Sen. Bob Menendez also face a possible retrial on bribery charges in Menendez's home state of New Jersey.
Menchel said Melgen may have wrongly billed Medicare for a covered treatment so that he could be paid for an experimental treatment that wasn't covered, but patients benefited, meaning Medicare's goal of providing care to seniors was met and it suffered no loss. Prosecutors have argued that the Dominican-born, Harvard-trained doctor performed unneeded, painful and dangerous procedures on patients for diseases that they didn't have or that were untreatable.
Prosecutors "are trying to argue that none of this was necessary and that's not true," Menchel told Marra. "These patients had very sick eyes, something that has been lost in this case. These patients weren't coming (to Melgen) for the heck of it."
Prosecutor Carolyn Bell told the judge that Melgen's practice was set up to maximize Medicare billing, placing his patients in danger of serious injury as he gave them unneeded injections.
"There are risks any time someone sticks a needle into an eye," she said.
Marra questioned Bell's contention that an unnecessary shot in the eye is automatically more injurious than one in the arm, while admitting the idea gives him chills.
"It sounds more disgusting but I don't know if it is any different," he said.
Marra said he will consider the evidence and testimony presented during the four-day sentencing hearing, which began last month, and impose a sentence.
The defense's argument Wednesday is important because the amount lost will play a key role in Marra's decision. Prosecutors say Melgen stole perhaps $136 million, and they want a 30-year sentence. Melgen's attorneys say the proven loss is $64,000. They want a short sentence, perhaps even just the time Melgen has spent jailed while awaiting trial and sentencing.
Melgen has been in custody since his April 28 conviction. Separately, in November, a federal jury was hung after a 2 ½-month trial where prosecutors tried to prove Melgen's gifts to Menendez were actually bribes. In return, they say, Menendez interceded with Medicare officials investigating his practice, obtained visas for Melgen's foreign mistresses and pressured the State Department to intervene in a business dispute he had with the Dominican government.
Menendez and Melgen have denied wrongdoing, saying the European and Dominican vacations and other gifts were tokens of their longtime friendship. Prosecutors haven't said whether they will retry the bribery case.
Prosecutors said Melgen was the nation's highest-paid Medicare provider for five straight years.
They argued during the Medicare fraud trial that Melgen's errors were too numerous to be honest ones. For example, Melgen frequently billed Medicare for tests and treatment on the fake eyes of one-eyed patients, as if the eyes were real.
Prosecutors also pointed to tests that should take five minutes or more, yet were done in seconds, making them useless for diagnosis, but enabling Melgen to bill Medicare up to several hundred dollars each, for as many as 100 patients a day.
The doctor pocketed millions more by splitting single-use vials of an expensive eye drug into four doses - there was enough extra medicine in each - and billing the government separately for each injection, they said. Melgen's attorneys argued that this cost the government no extra money, as Medicare would have purchased four vials if he had followed the instructions.
Melgen became politically active in 1997, after treating Florida Democratic Gov. Lawton Chiles, who appointed him to a state board.
He was soon hosting Democratic fundraisers at his 6,500-square-foot (605-square-meter) North Palm Beach home, and eventually became friends with Menendez. Melgen paid for trips he and the senator took to France and to the doctor's home at a Dominican resort. Menendez reimbursed Melgen $58,500 after the trips became public knowledge.
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