Argued: July 30, 2019
from the United States District Court for the Eastern
District of Kentucky at London. No. 6:16-cr-00023-1-Gregory
F. Van Tatenhove, District Judge.
Shechtman, BRACEWELL LLP, New York, New York, for Appellant.
E. Smith, UNITED STATES ATTORNEY'S OFFICE, Lexington,
Kentucky, for Appellee.
Shechtman, BRACEWELL LLP, New York, New York, for Appellant.
E. Smith, Charles P. Wisdom, Jr., UNITED STATES
ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Before: SILER, STRANCH, and NALBANDIAN, Circuit Judges.
NALBANDIAN, CIRCUIT JUDGE.
convicted Dr. Anis Chalhoub on one count of defrauding health
care benefit programs under 18 U.S.C. § 1347. A
cardiologist, Chalhoub implanted permanent pacemakers in
patients who-it turned out-did not need the devices or the
slew of tests that he ordered before and after surgery. On
appeal, Chalhoub does not challenge the legal sufficiency of
the evidence supporting the jury's verdict. Rather, he
alleges that the district court repeatedly admitted evidence
unduly prejudicial to him-and to which he could not
effectively respond. Although some of the government's
tactics here leave something to be desired, Chalhoub's
arguments ultimately prove unavailing. We AFFIRM
Anis Chalhoub practiced invasive cardiology in London,
Kentucky, with several practice groups between 1999 and 2013.
From 1999 to 2008, Chalhoub practiced with a group of
physicians called Cardiovascular Specialists. Chalhoub then
left Cardiovascular Specialists to start his own practice in
2008, which he named Cardiovascular Specialists of the
Cumberlands. Two years later, Chalhoub sold his practice to
St. Joseph Hospital, a Kentucky hospital system, and joined a
group of cardiologists called the Cumberland Group as an
independent contractor. When the Cumberland Group disbanded,
several Cumberland Group physicians-including Chalhoub-joined
St. Joseph Hospital as full-time employees in early 2012.
Chalhoub worked at that hospital for a little more than a
year before being terminated in June 2013.
in London, Chalhoub had no trouble staying busy. Indeed,
Chalhoub's productivity-measured by the number of
patients he treated and the procedures he performed- set him
apart from his peers. To show just how busy Chalhoub was, the
Government used Chalhoub's 2007 productivity statistics
as a point of comparison. A national survey of cardiologists
that year revealed that 75% of American cardiologists
performed 336 or fewer stress tests. Chalhoub, by contrast,
performed 853. (R. 145, Tr. at PageID #3118.) And that same
year, Chalhoub conducted about 2, 000 more office visits than
the average invasive cardiologist.
Chalhoub, more procedures meant more compensation. For a
simple office visit, Chalhoub would request reimbursement
from the patient's insurer and submit a code
corresponding to the nature of the visit. The reimbursement
process was slightly more complicated when Chalhoub performed
a procedure. In that case, the patient's insurer would
make two payments-one to the physician who performed the
procedure (the professional component), the other to the
facility where the procedure occurred (the technical
component). So if the physician performed the procedure at
his office, he could collect both the professional
and technical payment components from the insurer.
this fee-for-service arrangement, a physician's profit
motive might not always align with his duty of care. Consider
Chalhoub's specialty: cardiology. A healthy heart beats
at least sixty times per minute, and when the heart rate
drops below that threshold, the patient experiences a
phenomenon called bradycardia. Sometimes, bradycardia
warrants medical attention-and intervention. Inside the right
atrium of the heart lies the sinus node, which functions as
the body's natural pacemaker by sending electronic pulses
that cause the heart to beat. The sinus node can malfunction,
particularly as patients become elderly, and when that
happens, the heart will begin to beat irregularly (including
too slowly or too quickly). Physicians may decide to treat
this condition-called "sick sinus syndrome"-by
installing a pacemaker, a metal-coated electric device that
regulates the heart rate. But bradycardia is not always cause
for concern. Well-conditioned athletes, such as marathon
runners, commonly have slower resting-heart rates, often
dipping to just forty-five beats-per-minute. And even
non-athletes may have slower heart rates at night when they
sleep. Moreover, certain medications that treat
hypertension-such as calcium-channel blockers and beta
blockers-may also slow the heart rate. So a slow heart rate
does not, automatically, warrant medical intervention.
around the fall of 2011, the Government grew suspicious that
Chalhoub was performing unnecessary invasive cardiac
procedures on many of his patients-and then billing their
insurers, including Medicare. The Government informed St.
Joseph Hospital, which then hired an outside firm, Executive
Health Resources ("EHR"), to conduct an internal
investigation of Chalhoub's practices. Dr. Edward Solow,
an experienced cardiologist, led the EHR team in its review
of twelve pacemaker procedures that Chalhoub performed. Solow
received the complete hospital record and all pertinent
office records for each of the twelve patients and reviewed
those records to determine whether there was any medical
justification to install the pacemakers. Solow could not find
support in any of the twelve cases for Chalhoub's
decision to install the pacemakers. Upon receiving the
results of that investigation, St. Joseph Hospital terminated
Chalhoub in June 2013.
Indictment and Trial. A grand jury indicted Chalhoub on
one count of health-care fraud in violation of 18 U.S.C.
§ 1347. The indictment charged him with executing or
attempting to execute a scheme to defraud health-care benefit
programs between March 2007 and July 2011.
trial, the Government's primary expert witness was Dr.
David Spragg, a professor at Johns Hopkins University and
practicing cardiologist. Spragg testified that he reviewed
thirty-one procedures Chalhoub had performed, twenty-seven of
which Spragg considered unnecessary. Spragg also testified
more broadly about some patterns that he detected while
reviewing records of Chalhoub's former patients. Often,
patients on heart rate lowering medications such as beta
blockers would come to Chalhoub with nonspecific
complaints-perhaps attributable to their medication. Chalhoub
would first tell the patients to wear a Holter monitor, a
special device that would track their heart rate around the
clock. And often, that device would show that the patient
experienced nighttime bradycardia (that is, a heart rate of
fewer than sixty beats-per-minute while the patient was
asleep) but that the patient's daytime heart rate was
normal. But Chalhoub would tell the patients that they had
sick sinus syndrome-and then install a pacemaker to regulate
their heart rate. Even after a patient received the
pacemaker, Chalhoub would order more testing-including the
Holter monitor-for which he would bill the patient's
more doctors testified at trial. The Government called Dr.
Solow, who testified about his review of Chalhoub's
pacemaker installation practices. The Government also called
four practicing cardiologists in Kentucky-Drs. Aaron
Hesselson, Gery Tomassoni, John Gurley, and Oluwole John
Abe-to testify about some reasons for installing a pacemaker.
In fact, Hesselson had treated some of Chalhoub's former
patients. Hesselson noted that Chalhoub's patients with
pacemakers "seemed to be much younger than the average
patient having a pacemaker put in." (R. 142, Tr. at
PageID #2420.) And Hesselson testified in detail about his
treatment of seven named patients in whom Chalhoub had
installed a pacemaker. According to Hesselson, four of those
patients never required a pacemaker to begin with, prompting
him to either turn their pacemaker down or remove it
altogether. Finally, Hesselson testified more
generally about his treatment of patients who came to him
after Chalhoub had installed a pacemaker. Hesselson stated
that he either turned down or turned off the pacemakers of
"approximately twenty" of those patients.
(Id. at PageID #2466.) That figure stood out to
Hesselson. Indeed, Hesselson testified that over the course
of his career, he had treated at least 5, 000 patients with
pacemakers, of which he could recall only one other patient
whose pacemaker he needed to turn down. Hesselson, however,
could not provide the names of any of those twenty patients.
closing argument, the Government told the jurors that it had
"identified approximately fifty examples" of
pacemakers that Chalhoub had installed unnecessarily-the
twenty-seven patients that Spragg identified plus the twenty
unnamed patients that Hesselson described. (R. 148, Tr. at
PageID #3944.) The jury convicted Chalhoub, and ...