The hardest appeal to win is one based on insufficiency of the evidence. It argues that “the jury got it wrong.” Courts of appeal do not look kindly upon this argument, not only because it forces the court to dig deep into the record but because it asks the court to question the jury’s verdict.
It’s always easier to affirm what the jury did.
In a recent decision out of the Fifth Circuit, however, the court did not take the easy path. It reversed the Medicare fraud and conspiracy convictions of a doctor and home health agency owner because there just wasn’t enough evidence to convict them.
These kinds of decisions are extremely fact-intensive, so it may be hard to use this win in your own case. But, at a minimum, the opinion gives all of us hope that losing a trial is not the end and reminds us to keep fighting every step of the way.
The Supposed Scheme
The facts themselves are fairly straightforward. Christian Home Health Care was a home health agency owned by defendant Elaine Davis. The other defendant was Dr. Pramela Ganji, who worked for Christian as a medical director in the New Orleans area, beginning in 2010.
Christian provided home health care services in southern Louisiana. Home health care provides medical care when the patient finds it difficult or impossible to leave her house. As you can imagine, home health care services are most often provided to senior citizens and are part of the Medicare reimbursement system.
As a general rule, for Medicare to reimburse home health services, the patient must be homebound. That makes sense, right? If the person can leave their house to get medical care, then Medicare should not be paying an extra amount to provide home health care services. Medicare also requires that the doctor or a medical professional to certify that the patient is homebound by having a face-to-face evaluation.
You can probably see where this is going.
The government alleged that Christian fraudulently certified that its patients were homebound to bill Medicare for its services.
According to the feds, Christian employees were paid bonuses or given incentives to recruit prospective homebound patients. This “scheme” involved about $28 million in Medicare reimbursement payments over a several-year period.
There was another southern Louisiana home healthcare agency run by Dr. Mark Morad. As part of the federal government’s Medicare Task Force, Dr. Morad was indicted and pleaded guilty to Medicare fraud.
After Dr. Morad was forced to close his agency, the other home health agencies (including Christian) in the area did the logical thing: they went after his patients and his employees.
The plot thickens, right? Did other agencies take Dr. Morad’s scheme as well as his employees and patients?
The Cooperating Witnesses Worked 60 Miles Away
At trial, the government relied heavily on three witnesses who used to work for Dr. Morad. They were Dr. Murray, Luella Hendricks, and Kimberley Celestine.
The three cooperators worked in Hammond, Louisiana—60 miles from New Orleans. (Little known fact: Hammond was the center of shoe-making for the Confederate army.)
As the court explained:
In the scheme, Hendricks and Celestine referred patients to Christian, taking the certification form to Dr. Murray for certification. Without extensive review of the patient’s record or thorough inquiry into their homebound status, Dr. Murray signed the documents. Christian nurses, usually those who certified the patient, with then perform services for individuals who were ineligible and Christian would receive Medicare payments.
Dr. Ganji and Ms. Davis were found guilty at trial. (Another doctor was acquitted.) Dr. Ganji was sentenced to 72 months, and Ms. Davis was sentenced to 96 months. They appealed.
No Conspiracy for You!
The main issue on appeal was the sufficiency of the evidence to convict Dr. Ganji and Ms. Davis of conspiracy to commit Medicare fraud.
The court of appeals went through its usual introductory discussion of how someone can be found guilty of a conspiracy (hint: you need an agreement). It also noted that appellate review is highly deferential to a jury’s verdict. The verdict will be affirmed unless “no rational jury” could have found the essential elements of the charge to be satisfied beyond a reasonable doubt.
Unlike at trial, defendants on appeal don’t get the benefit of the doubt. The appellate court reviews all of the evidence and inferences in the light most favorable to the jury’s verdict.
That’s a heavy burden to overcome.
The problem for the government on appeal was that it really had no evidence of a conspiracy involving these two defendants. There may have been a conspiracy among the cooperating witnesses. But they worked separately from Dr. Ganji and never told Ms. Davis about their scheme.
Ms. Hendricks testified at trial that she recruited patients and took them to Dr. Murray’s private practice for certification as “homebound,” all the while knowing that they were not homebound. She admitted that she never told Dr. Ganji or Davis about this important fact. Ms. Celestine testified to the same effect.
Dr. Murray wasn’t much different. He testified that he would receive referrals from Ms. Celestine and Ms. Hendricks for certification as homebound. He stated that although he believed they were homebound when he signed the certification, he had later seen some of those homebound patients “around town,” which made him question his certifications. But he never told the two defendants about these concerns.
The court concluded that “although these witnesses admitted to their own fraud, they did not implicate Dr. Ganji.” There was no evidence that Dr. Ganji agreed to join the unlawful plan to improperly certify the patients as homebound and bill Medicare.
Dr. Ganji also provided affirmative evidence of her innocence, which, according to the decision, “went unanswered by the government.” For example, she testified that her practice was very different from Dr. Murray’s because nurse practitioners conducted the patient visit to determine homebound status when Dr. Ganji could not. (Allowing nurse practitioners to visit patients is allowed by the Medicare regulations.)
The government probably thought it had an “a-ha!” moment when it presented evidence that Dr. Ganji signed blank homebound certification forms.
Dr. Ganji quite reasonably explained that she didn’t just sign that form standing alone. Rather, there was another piece of paper attached to that form that had notes from the nurse practitioners about the patient. She would also review paper charts from hospitals or primary care physicians before signing.
Not exactly the smoking gun the government had anticipated.
The evidence about Ms. Davis was no stronger. Dr. Murray testified that he never agreed with Davis to defraud Medicare. Ms. Celestine and Ms. Hendricks admitted that they had never told Ms. Davis that the patients they were referring were not homebound.
In the end, the court concluded
The government’s attempt to ascribe Davis with knowledge in agreement because of her position in the company falls far short of the necessary requirement for guilty beyond a reasonable doubt one cannot negligently enter into a conspiracy.”
The Audacity of HopeTM
This was a long road for Dr. Ganji and Ms. Davis.
They were indicted in June 2015, and no doubt under investigation long before that. The trial was in March 2016.
Their sentencing was in October 2016. The government asked that Davis be sentenced to 235 months (she got 96 months) and that Dr. Ganji be sentenced to 151 months (she got 72 months).
The Fifth Circuit issued its decision in late January 2018.
I’ve written before the long and exhausting road of a criminal investigation. For about 3 years (and likely more), these people and their lawyers, including David Markus, have been fighting the charges.
It’s great to see this win after such a long battle. In particular, it’s great to see this win against the government’s seemingly-unchecked investigations and charges related to healthcare fraud.
This win also gives all of us just a little bit of hope that if we lose a trial, there still a chance to win justice for our clients and reminds us to keep fighting.
We’re in it for the long haul.