One of the white collar federal criminal cases me and my partner Carl Lietz have handled here in Atlanta involved a very successful local radiologist. The doctor came to see us after being represented by some other very accomplished attorneys. We took on his case, fought very hard, yet lost the trial in the summer of 2011. The doctor went to prison, but we kept fighting by asking the Court of Appeals to reverse his convictions. This past Friday morning, our efforts paid off, in that the Court of Appeals reversed each and every one of the 35 charges against the doctor. Here is a short version of the story, which should be a lesson for all lawyers and clients on how important it is to make long-range plans while in the middle of a hard-fought trial process.
The government’s basic allegation was that our client submitted tens of thousands of radiology “reports”, without himself or any other doctor actually looking at the x-ray or other image that was the subject of the report. Some staff members said it looked like he was doing that. Furthermore, the computer system logs only showed him accessing the associated images about 5000 times out or the 72,000 reports issued over his signature. The government’s case was made even better when they demonstrated that some reports were issued while he was on vacation or even on international airline flights.
We fought back against each of these allegations with some pretty good evidence of our own. Very importantly, we wanted to show that he really had “done the work.” Our client had paid a lot of money for a “peer review”, in which another board certified radiologist looked at a random sample of the reports in question. We wanted to use this report to enhance the argument that he really “did the work”. The peer reviewer came to the same conclusions as whoever issued the reports, thus furthering our argument.
This is when the famous “Daubert” case came into play. We knew that the prosecutors would likely try to exclude our peer review expert. They were able to convince both the very able U.S. Magistrate Judge and the District Judge that we should not be able to use the peer review. At trial, we therefore were hamstrung a bit in trying to show that our client really “did the work.”
I’ve done lots of appeals over the years. Many times, I’ve had the honor and privilege of participating in spirited oral arguments in the courts of appeals throughout the country. This appeal was one of the best I’ve ever been in. In ruling for us last Friday, that does not end the story. The prosecution has the option of requesting rehearing, or even asking the U.S. Supreme Court to look at the case. But for now, it is gratifying to know that all our hard work paid off.
Regular readers know how I like to give pats on the back to lawyers who don’t give up, who remember to make objections, and who continue fighting on behalf of their clients. That’s what led to this win, looking ahead, seeing that this was a good issue, and persevering. It’s not over yet, but at least we are now moving the doctor’s case in the right direction again.