Could this have been averted early on before this unfortunate result?
Last week, following his conviction last April for medical billing-fraud related to medically unnecessary placement of cardiac pacemakers, Dr. Anis Chalhoub was sentenced to 42 months in prison; required to pay $257,515 restitution to Medicare, Medicaid, and private insurers; and fined an additional $50,000. Dr. Chaloub’s attorneys had requested a shorter time in prison and perhaps it is possible they will appeal the sentence.
According to the press release from the U.S. Attorney’s Office, an additional term in the sentence was that following release from prison he will remain on probation for a three-year period during which the “court has prohibited him from practicing cardiology during that time.” I am puzzled about whether a federal court has superior jurisdiction over Kentucky’s Medical Licensure Board for such a restriction on licensure. If I were the Kentucky Board, I would be embarrassed or angry, or both. Out of curiosity, I looked today at the Kentucky Board’s website which informs me and potential patients that Dr. Chalhoub still has an active Kentucky medical license with “no actions” or restrictions mentioned. (I confirmed this with a call to the Board.) Although several physician-referral & rating websites have him affiliated with hospitals in Lousiville and Indiana, I do not know if he is still practicing medicine.
The government’s case against Dr. Chalhoub has been chugging along since his indictment in June 2016– as have civil lawsuits for malpractice. Despite the passage of time and a presumed abundance of courtroom and settlement documents, I did not personally have a sense of the magnitude of the putative deviations from medical practice norms alleged to have taken place. I have written in the past about how the nature of trial and settlement agreements makes it difficult for the public to know what actually has happened in these healthcare cases, or what individuals or institutions have shared any role. A more rigorous on-line search for court documents today found one relevant document that helped. In his August 1, 2018 decision not to acquit Dr. Chalhoub of his conviction or to grant him a new trial, Federal Judge Gregory F. VanTatenhove summarizes enough of the factual evidence and expert testimony from last April’s trial for me to believe that the jury’s verdict was a justifiable and proper one.
Interestingly, Dr. Chalhoub’s defense followed the example piloted by Dr. Richard E. Paulus in an initially successful move to reverse his conviction for billing-fraud and angioplasty abuse at King’s Daughters Medical Center. That defense claimed that because of the subjectivity and difficulty in making medical judgements that it is impossible to be accused of making false statements. That argument was dismissed both by Judge VanTatenhove, and earlier by the Sixth Circuit Court of Appeal in their highly critical reversal of the earlier district court acquittal of Dr. Paulus rejecting the argument as “an insult to common sense.”
Dr. Chalhoub deserves to be treated fairly, as does any defendant in our court system. A review of at least some of the titles of more than 166 court documents tells that he had a hard-fought defense and at probably more than customary due-process throughout his personal ordeal. He was convicted and sentenced for billing-fraud for exaggerating the severity of illness of his patients in order to gain higher reimbursement than he was due. In my mind he was also guilty of taking advantage of his patients for personal gain by not providing accurate and fully informed consent.
With respect to Dr. Chalhoub’s case and others involving over-utilization of invasive cardiac procedures I offered that: “What I … believe is that when lawmakers, lawyers, and judges have to step in to ensure that appropriate medicine is being practiced, that we have failed our mutual professional responsibility as physicians.” I do not know if Dr. Chalhoub’s practices were evaluated under the auspices of the Board of Medical Licensure or if any action was taken by the Board that is otherwise not available to the public. The Board responded to an inquiry from The News Journal of Whitley County– “While they could not comment on a specific case, board officials said if a physician is found guilty of a felony, the board may elect to take disciplinary action.” Should the Board wait that long? Would earlier inquiry or intervention have been more fair to both parties? To the public?
In my understanding, the Kentucky Board of Medical Licensure has two primary responsibilities which are inevitably in conflict with each other. On one hand it has statutory responsibility to protect the safety of the public. On the other hand however, it is organized and acts to protect the professional and commercial interests of us medical professionals– including the specific interests of the Kentucky Medical Association which in my opinion exercises overlarge influence on the Board. I freely admit that this is not always an easy balance to make. Other physicians and individuals will have different feelings, but I believe the Board can better honor its obligation to the public by earlier review and intervention in disputes such as presented in these cases. I would like to believe there is a better way to protect the public than waiting for whistleblowers to come forward or for courts to make the tough calls for us. In an increasingly disjointed and complicated clinical environment of collaborative team care, all of us physicians should feel a collective obligation to refer significant instances of inappropriate care or physician impairment to our local institutional quality and peer review committees– or if necessary even to the Board of Medical Licensure. We have been historically reluctant as a body to do so. Would the current opioid epidemic have exploded so badly if we had done our duty? Did St. Joseph really have to lose its cardiology program and incur such damage to its reputation? Why should a Federal Court be deciding who gets to practice what kind of medicine, or allowing a host of quality-rating offices in Washington and elsewhere with vested interests of their own to be telling us how we can improve the effectiveness and integrity of our practices? That’s our job.
Respectfully and with apologies for the polemical indignation!
Peter Hasselbacher, MD
Emeritus Professor of Medicine, UofL
November 5, 2018
p.s. I am not an attorney, but 18 years ago I did spend many days meeting with the Licensure Board as a stand-in for my then Dean of the medical school. If things have changed since then, or if I have loused up in my use of legal terminology, let me know so I can fix it.