I was convicted on 5/10/2017 of medical and information fraud. I am innocent.
Implications of my Conviction:
Doctors will be simple technicians and will not be able to create personalized treatment plans outside of a box.
Doctors will be afraid of patients, since their insurance companies can use the full might of the US government against their clinical judgement.
Quality of healthcare will suffer.
Doctors will move away from practicing medicine or taking insurance.
Insurance companies will make more money because doctors are afraid of ordering some tests, performing some procedures, or prescribing some medications.
The Department of Justice might use cases such as mine to intimidate bigger fish, like departments in big hospitals. Those departments will have to settle, and settle big they will. This will be a major money making task on the part of the DOJ.(click here for further reading)
My case is over, but I want to share the salient facts and my side of the story. This is a very technical case but the evidence is overwhelmingly in my support.
By now you probably have run across reporting of my conviction for medical fraud and subsequent sentencing. If you would like to know my side of the story, here goes.
In Jan 2013, Blue Cross/Blue Shield (BC/BS) fraud division representatives met with me at their office. In the room were a number of people, one being the medical director, who was an emergency room physician; others were an ex FBI agent, Mr. They had abut 10 different charts, each with different problems. They felt all represented fraudulent activity. I remember a few. One case was of a lady that I had biopsied 5 lesions from. One of the 5 lesions was a skin cancer. BC/BS felt I did too many biopsies, therefore this is a fraudulent act. I explained how one was skin cancer, and some were rather ominous looking. In the USA, for every melanoma caught on biopsy, and average of 30 biopsies are done. Secondly, the more biopsies I do in one day the less I get paid, so there is no financial incentives to do multiple biopsies and in fact most dermatologists do not do more that 2 biopsies because their reimbursement goes down significantly. I tried explaining the fact that I caught a skin cancer early. This was sent to an outside lab and they diagnosed a skin cancer. It did not move her. I got frustrated with here apathy. I asked her how I should have treated this patient with 5 suspicious lesions. She (Dr. Lisa Barnes, an emergency room doctor, who worked on BC/BS dime) said that I should have watched the 5 lesions over time and when the skin cancer started looking different, then biopsy it. She essentially wanted me to let the skin cancer grow. That is not how I was trained and that is not in the spirit of the Hippocratic oath doctors take. Next she pulled another chart, and this was of a man who came to me for severe itching that the University of Chicago dermatologists and other outside dermatologists had not been able to treat. He was covered in pin point bumps and scales with blood from scratching. He could not stop scratching throughout the first consultation, and complained of nights without sleep because of the intense itching. Mind you, there is literature showing people committing suicide due to intractable and intense itching. He had had a great workup at University of Chicago, but they had not been able to give him relief. I agreed with the diagnosis of the University of Chicago and gave him a further clinical diagnoses. I started him with light therapy that the patient said was never offered to him. This light therapy is a standard of care in the USA. He started to get better and told me that this is the first time anyone has given him relief from this itching. BC/BS medical director told me that I had provided too many treatments without seeing the patient. I denied that. I would see the patient often and have extensive conversations with him, but I never charged for that as office visits and my medical assistant scribes did not document the conversation and examinations. Another problem the had was with my post Mohs skin cancer closure. She questioned my closure. I dont know if she wanted me to leave the hole open and send the patient home so BC/BS would have less to pay for. Im not sure of herr intentions, but I know my intention was to provide the utmost care. However, the next patient is what BC/BS chose to pass to the FBI as fraudulent. The story of this patient who triggered the FBI to comb through my practice; meet with many patients of mine and spook them; and ultimately find me guilty of fraud was the following patient:
In 2012 I biopsied a patient, and an outside lab diagnosed skin cancer. I treated the skin cancer and went on to treat her pre-cancers (actinic keratosis, AK) with and Intense Pulsed Light (IPL) machine. The journals were getting filled with different articles showing the effectiveness of this device without the downtime of other methods. By now we have over 5 scientific articles showing that IPL is effective in treating actinic keratosis. Rather cutting edge, a treatment for AKs that do not have much side effects……who would be against that? Since it is a heat producing device, it is presumed that it destroys the pre-cancers with heat. I thought I was helping this patient by treating her pre-cancers with IPL(In the treatment of AK, most options leave marks and the only treatment without marks is a cream called Solaraze gel®, which she was also given; however this is a very expensive medication and at the time insurances had difficulty paying for it). The BC/BS medical director felt that IPL is ineffective and that this patient did not have pre-cancers and I falsely diagnosed her with pre-cancers to make money on the two sessions of treatment (it is not logical to think a patient with cancer could not have pre cancers. They had not had the patient examined by another dermatologist to make that claim. In my opinion and 15 years of experience, she had pre-cancers that needed treatment). I strongly denied their claim. In my final trial (2017), an ex-FBI agent present at that meeting with BC/BS (2012) testified that I denied using IPL on this patient for cosmetic reasons when confronted with the accusation. In short, this patient had pre-cancers and the use of IPL as a tool made no more money than using liquid nitrogen or any other tool to destroy the growths.
Six months later, the government raided my office with a search warrant. They never read me or my mother our right to an attorney and separated us in different rooms and interrogated us in pairs (good cop, bad cop). We were in utter shock. Mind you it was like 6:30am. It took them 10 minutes to figure out I had security cameras. As soon as they noticed them they discussed options, and they quickly started to cover them with paper. I don’t know what they had to hide. at the end of the day, I went into my office to see what they had left behind. They had deleted my DVR of the first 10 minutes of them raiding the office. I did not know that they had the right to destroy my property. But they thought they did. I mentioned this to a middle aged IT guy. He said let me look at this. He examined the system and said dont worry, you have backup files. The FBI could not even do their job right. In deleting the files, they could not delete the backup files, something a middle aged novice IT guy knew. At that point I was sad that the organization that is entrusted with our safety cannot even do a simple job it undertook. It could not delete a computer file. SAD. When I examined the video, it was sad, they had brought donuts and coffee on the same counter I was to see patients in a few hours. They wondered my halls aimlessly. I give them a big fat F on their search warrant. God help us if this crew is entrusted with our national safety.
One FBI agent asked me what I had in the office to treat pre-cancers. I showed her a number of different tools I had to destroy pre-cancers, like freezing tools, Levulon®, IPL, Acid, electrocautery etc. In fact she would not let up until I showed her the Levulon® sticks and then she commented why I had so few. I replied that I order in small quantities, since they arrive quickly. She was honest enough to write down a few (IPL, Levulon®, electrocautery, etc) in an official form and submitted it to both my lawyers and the government as a legal document.
In 2015, a Grand Jury was formed. I was told by my lawyer not to be present. No patient testified at this jury on such a patient-related case. The same FBI agent took the stand and under oath stated that I only had IPL for destruction of pre-cancers at my office. This clearly contradicted her previous written statement and therefore amounts to lying under-oath. Her testimony played a key role in the grand jury indicting for medicare and madicaid fraud. In June 18, 2015, Attorney General Loretta E. Lynch got up on a podium in Washington, DC and announced this collasal sweep and the discovery of alleged helthcare frauds across the nation. My name was included. Obamacare was given extra funds for exactly such actions. I and my family and friends were shocked and came to my emotional aid. I did not know what my charges were exactly. Thank God for family and true friends, including my patients. The fair weather friends flew. That I view as a good thing. It was a good house cleaning. The USA DOJ accused me of diagnosing people who did not have pre cancers (actinic keratosis/AK) and treat them with a tool called intense pulsed light (IPL) only to make money. I will show you how I lost money for each patient I treated precancers with IPL and for there to be fraud there needs to be motive to make money.
The government had found that my practice had 600 AK patients from 2007 to 2013. However that is normal.
8 day court usa vs memar, the government presented 8 patients as evidence. The government claimed that I had falsely diagnosed these patients with “actinic keratoses” and then unnecessarily treated them using IPL. In hindsight, it seems, I may not have done a good job communicating my treatment plan to them, since the government managed to get some of them to testify that they thought they were getting cosmetic treatments using insurance. However, I never would knowingly misdiagnose any patient. This would go against the very grain of everything I stand for Reference, read the countless comments from patients on here or facebook. If your interested in a detailed explanation, refer to link A (click here) or and Outline of trial against Dr (click here).
During the trial, the Assistant Attorney General Stephen Chanhg Lee asked me under oath whether I had admitted to BC/BS in the 2013 meeting that I had performed photo-rejuvenation, implying I had admitted to defrauding BC/BS . I denied it and requested supporting evidence. He ignored me. Had I made such an admission, BC/BS would have been obligated to request repayment of all “fraudulent” claims. They did not. Instead they told me to provide better documentation in future claims. Furthermore, remember the ex-FBI present at the Jan 2013 meeting confirmed my version of events under oath.
Yet, Stephen C Lee, during his closing argument (the government gets the last word during a criminal trial) repeatedly and angrily proclaimed that I had “confessed to it.” not once not twice but many times and ran up and down in front of the jury in almost a dance. while running he was facing the jury but twice he turned his entire body toward me during these repeated utterances with both his index fingers extended, pointing at me. It was different than any other time he presented or any other lawyers presentation at the trial. In the governments response to our post-trial motions, the government addresses this moment as,
“Even if the government misstated or overstated the testimony regarding defendant’s statements to Blue Cross Blue Shield, defendant has not shown that he suffered prejudice warranting a new trial here.”
Therefore they cannot back up Mr Lee’s “he admitted it” and even admit as far as calling it “misstated”. This mis-statement of my testimony by Stephen C Lee effectively amounts to lying during his closing argument by proclaiming “he admitted it,” when I had actually denied it. These untrue words were the last thing the jury heard and I was convicted of 16 counts of medical fraud on May 10, 2017, despite overwhelming evidence to the contrary.
The jury was dealing with a very complicated medical case with difficult jargon and treatment protocols that went on for 8 days.
I believe our government officials, especially in the U.S. Department of Justice, should be held to the highest standards. Lying is not acceptable.
During my 14 year skin cancer practice, no one was under-diagnosed. I prided the practice for detecting skin cancer early.⋯Sadly, a patient who had a history of precancerous moles contacted the office in mid 2017. He was not one to go see the doctor. We used to beg him to come in and I caught many pre-cancerous moles on him. Due to insurances dropping me upon indictment, he would not come in or go to another dermatologist. We had a list of dermatologists we sent our patients to…… He notified us that he was recently diagnosed with skin cancer, this time in his brain. This sort of thing never happened on my watch. His is the greatest tragedy of this case. I would have been happier never to practice medicine than see the tragedy of this case.
Review of the trial:
In the first week of May 2017, I had a trial. I made an outline and what was said that clearly shows that I am not guilty. It is presented at the end of this document.
Quick facts of what the government says I had done to 8 patients between 2007 and 2013:
Before we start: I, Dr. Memar, diagnosed 8 of the government’s patient witnesses with actinic keratosis (precancers). I believed and continue to believe my diagnosis was correct. I treated them with a machine called IPL because numerous publications proved that IPL alone treats actinic keratosis (and there were no publications that did not show that IPL alone was ineffective). I never used cosmetic treatments. I used IPL as a destructive tool. I did not do anything wrong and I cared for my patients and prevented them from getting skin cancer. The government’s accusations are wrong. The government presented 8 patients each with 2 counts of fraud (medical and information). They accused me of knowingly misdiagnosing these patients with actinic keratosis and treating them with a machine called Intense Pulsed Light (IPL). The 2 counts for 8 patients came to 16 counts. This case was a result of Blue Cross
and Blue Shield (BCBS) complaining about me. Remember that BCBS is the fourth largest lobbyist to the United States government. Their word and what they want gets listened to. In this case, no physician ever examined any of these 8 patients and confirmed that they did not have actinic keratosis. The 8 government-presented patients themselves do not remember the word actinic keratosis. What follows is the case outline:
How is the jury to decide this case?
For Dr. Memar to be innocent:
i) Dr. Memar needs to show that the evidence cannot support a finding of guilt beyond a reasonable doubt.
For Dr. Memar to be found guilty:
i) The government needs to prove beyond a reasonable doubt that Dr Memar knew his patients did not have pre-cancers (actinic keratosis) but diagnosed and treated them
In this outline, it will be shown how the government failed to honestly prove this, and only with “misstatements” managed to get the jury to convict Dr. Memar, and denied him a fair trial.
The jury consisted of 12 members: all were Caucasian, their education level was from a GED to one person with a Masters degree (I don’t know if it was an on line degree or what it was in), only half had been to a dermatologist and none had an actinic keratosis (as an aside 1 in 5 people in the USA have an actinic keratosis, so chances are at least 2 of the jurors actually had actinic keratosis but did not know of it). In the middle of the sessions, the judge asked the government’s expert, Dr. Ross, if the spots his doctor burnt off his scalp were pre cancers, to which Dr. Ross nodded yes. Therefore, the jjudge himself did not know his diagnosis of actinic keratosis, but I was being held to another standard than his dermatologist. Where is the fairness?
2) The government’s case against Dr. Memar had 3 (three) prongs:
i) First was the thesis that Intense Pulsed Light (IPL) alone is not a viable treatment for actinic keratosis
(1) 5 papers support this method
(2) Dr David Goldberg said the international medical community had unanimously recognized the efficacy of IPL for treating actinic keratosis during the period of the treatments in question.
(3) The government’s expert, Dr. Ross, had actually lauded the “excellent” results of treating AK with IPL alone in a 2006 publication in Dermatologic Surgery
ii) Second, because IPL is ineffectual for AK, Dr. Memar could not have believed he was actually treating that condition.
(1) Dr. Memar’s belief in IPL for treating AK–the evidence was clear that he even treated biopsy-confirmed
AK patients in this way, one of whom had actual skin cancer.
(2) Patients actually got better and some preferred the IPL to other techniques when they knew very clearly that they had actinic keratosis.
(3) Five publications show the usefulness of IPL alone for actinic keratosis. Don’t come after me for facts already established.
(a) This is like prosecuting someone for believing the world is round….to that I say prosecute Galileo.
iii) Third, the patients did not actually have actinic keratosis. This implied that Dr Memar over diagnosed actinic keratosis.
(1) Evidence showed that Dr. Memar’s patients had the classic symptoms of actinic keratosis, no matter the inability of some of them to recall hearing those precise words in a conversation 5 –10 years earlier.
(2) How do dermatologists normally inform their patients that they have actinic keratosis?
(a) Telling the patient they had spots that needed to be treated or removed sufficed. (Dr. Ross Tr.566-67; Dr. Goldberg Tr. 894-95; Dr. Memar Tr. 1022)
(3) Dr. Memar’s office was decidedly modest in its diagnosis and treatment of actinic keratosis–the opposite of what would be expected if there was a scheme to falsely diagnose and treat it.
(a) The evidence shows that from 2007 – 2013 (the time period of the indictment), Dr. Memar had approximately 600 actinic keratosis patients and approximately 1,800 actual skin cancer patients. (Dr. Memar Tr. 1088, 1091). Equally undisputed was Dr. Goldberg’s testimony that you would expect between 10 and 30 times as many AK patients as actual skin cancer patients, and hence that Dr. Memar had a very low number of AK patients. Indeed, Dr.Goldberg would have expected there to have been 20,000 AK patients as opposed to his mere600. (Dr. Goldberg Tr. 894). (Dr. Memar has as many as 30,000 patients at a time. (Dr.Memar Tr. 1096)).
(b) Therefore Dr. Memar had much fewer actinic keratosis patients as would be expected. This implies that great discretion was used By Dr. Memar in diagnosing actinic keratosis. He had so few that when he diagnosed a person with actinic keratosis he was very confident in the diagnosis.
3) The Governments witnesses
a) Ashley Davis, FBI agent (agent who interrogated me and misspoke at the grand jury)
i) This is the agent who made the misstatement in the grand jury. When she was presented with that
documented fact, she became silent and from my point of view, looked upset.
ii) Upon leaving the court, my mom said Ms Davis looked rather distraught and grabbed her purse in a rapid jerking motion, as if she was upset, and stormed out of the court room.
b) Medical assistant 1
i) Former medical assistants Michelle Kline and Jennifer Gecas provided no competent evidence whatsoever for the proposition that Dr. Memar’s IPL patients did not actually have actinic keratosis. Neither recalled a single patient they had treated, their skin condition, or anything else. (Kline Tr.
240-42, 245-46; Gecas Tr. 324-26, 333). All they offered was hopelessly unparticularized testimony, thereby disqualifying themselves as competent
(1) Ms. Gecas likewise professed her total ignorance of actinic keratosis to FBI Case Agent Ashley Davis.
c) Medical assistant 2
i) Michelle Kline admitted not knowing what actinic keratosis and scaly plaques were, such that even if she had remembered particular patients, her testimony as to whether they had either condition would have been meaningless.
ii) Michelle Klein had praised Dr. Memar on a television show after leaving Dr. Memar’s office. Dr. Memar’s lawyer asked Ms Klein under oath : when did you determine that Dr. Memar was acting fraudulently? She answered: when the FBI showed up. Therefore, just the presence of the FBI and their bully pulpit changed her opinion of Dr. Memar.
d) Medical assistant 3
i) 14 years with Memar
ii) She was adamant that each patient called by the government hadit, which she knew from seeing the AK’s on their faces from 12 inches away as she administered IPL and before that when the patients were initially examined in her presence.
iii) She was equally insistent that Dr. Memar had never falsified medical records or done anything improper and never asked her to as to these or any other patients
iv) Had he done so, she would have found employment elsewhere and without difficulty given the offers she received and rejected while working for Dr. Memar.
v) With all her experience treating AK, Ms. Guttierez was clear that if she had AK, she would choose IPL alone as her treatment method.
vi) Testified without contradiction that Ms. Gordon’s (patient 8) AK’s were so pervasive that she thought that some were actual skin cancer.
e) The Patients in the Indictment (8 patients, each with 2 counts of fraud, totaling 16 counts of Fraud.
i) Pt 1 (Kontos) counts 4 and 12
(1) Kontos not only had acne, but additionally “red, scaly bumps” “all over” (Kontos Tr. 698, 711) that “itched” (at 711) and that were “different” from and not acne. (Kontos Tr. 709). As Dr. Ross testified for the government, this was the classic presentation of actinic keratosis. (Dr. Ross Tr.514). Dr. Memar prescribed a series of IPL treatments to avoid
this “sun damage” (which actinic keratosis is) turning into cancer. (Kontos Tr. 699-700, 711). The IPL’s worked, the AK’s disappeared, and Ms. Kontos stopped getting the IPL treatments. (Kontos Tr. 705-708). When the AK’s recurred, she got more IPL’s with the same successful results. (Kontos Tr. 711). She described Dr. Memar as a “fantastic doctor” who “absolutely” “did everything on the up and up.”
(Kontos Tr. 711)
ii) Pt 2 (Siegel) counts 7 and 15
(1) The very patient I was called into BC/BS to discuss
(2) Memar focused on the surrounding area and saw lesions that shouldn’t be there for which he ordered IPL treatments. (Siegel Tr. 475, 502). He told Ms. Siegel that left untreated, the lesions could turn into squamous cell carcinoma. (Siegel Tr. 488).
(3) Siegel believed that Dr. Memar had saved her face, if not her life, and that he had done nothing wrong in any of this, no matter what the government had told her.
(4) when the lesions returned in 2014, Ms. Siegel was treated with Solareez gel (Siegel Tr. 501), an indisputable treatment for AK
iii) pt 3 (Combs) counts 1 and 9
(1) She insisted that she received IPL treatments for medical, not cosmetic purposes.
(2) She was worried about a significant sunburn she sustained on vacation and had a history of sun damage and sun exposure naturally and through tanning salons that made her a prime candidate for actinic keratosis.
(3) Thus, Dr. Memar gave her IPL for her “sun damage”–which actinic keratosis is, (Dr. Robinson Tr. 67)–before it “turned into something worse.”
iv) pt 4 (McMullen) Counts 2 and 10
(1) The government’s chief evidence that Ms. McMullen did not have AK in March, 2009 was (1) photographs of her with make-up on (McMullen Tr. 269-71, 277-78); (2) her current inability to “remember one way or the other” being told a decade earlier that she had “AK” or “actinic keratosis” (McMullen Tr. 271-72, 280), (3) and her inability to remember if she had scaly plaques back then–a memory that could never have existed anyway since she didn’t know what either actinic keratosis or scaly plaques are. (McMullen Tr. 279, 281). In fact, she did not remember Dr. Memar himself and thus could not point him out in court. (McMullen Tr. 263).
(2) by her own description, redness, scarring , and sun spots, all of which Dr. Memar told her had to be addressed
(3) She thought Dr. Memar was a good doctor (McMullen Tr. 281). And she would have trusted him to get IPLs back in 2005 when she started with him, long before 2009 when he first ordered them. He had thus refrained from giving her needless treatment for four years from which he would have profited–a forbearance starkly at odds with the charged fraud
v) pt 5 (Robinson) count 5 and 13
(1) Memar diagnosed him with both Rosacea and actinic keratosis, which Dr. Goldberg testified without contradiction can mimic each other and which commonly co-exist.
(2) said that Dr. Memar may have mentioned “AK”–it “sounds familiar.”
vi) pt 6 (Laurent) counts 6 and 14
(1) Laurent had been referred by Dr. Fabros to Dr. Memar for “spots on her face.” (Laurent Tr. 609).
She likewise had the prototypical history of AK, namely countless sunburns when she was young in addition to buying tanning bed packages by the dozen. (Laurent Tr. 631). Dr. Memar said the spots could be “precancerous” and recommended IPL treatment (Laurent Tr. 609-610, 631). The treatment worked, and the spots sloughed off. (Laurent Tr. 633-34). Ms. Laurent believed Dr.Memar to be a good doctor and was fond of him. (Laurent Tr. 630).
(2) She denied having scaly skin but a biopsy of her skin revealed lichenoid keratosis, which proved that she had scaly skin. “Keratosis,”
(3) Memar’s letter to Dr. Fabros immediately after the referral, conveying his diagnosis of actinic keratosis and intended IPL treatment further supported Dr. Memar and cut against the government’s version.
vii) pt 7 (Jaroch) counts 3 and 11
(1) Jaroch remembered virtually nothing Dr. Memar told her 10 years ago, although he may have mentioned “AK.”
(2) Was unable to identify Dr. Memar in court.
(3) Indeed, whatever “illicit” profit Dr. Memar made on the 10 or so IPL treatments was nullified by the steep Botox discounts he gave her–a wash that wholly defeated the purpose of any alleged crime.
viii) pt 8 (Gordon) counts 8 and 16
(1) Another dermatologist who examined this patient and testified said that this patient had a “a history of blistering sunburns and tanning, “ making her a “classic candidate for actinic keratosis”
(2) The patient denied having “lesions,” but my office sent her three bills explicitly referring to “destruction of lesions” and the other dermatologist who examined her said that the patient had lesions associated with pink bumps.
(3) This patient denied having scaly skin (one presentation of actinic keratosis), however the other dermatologist described her as having “dry, scaly” skin.
(4) The patient admitted that she could not recall everything Dr. Memar had told her.
(5) What little was left of Ms. Gordon’s credibility–generally and as to her memory– disappeared with her testimony that “after I saw Dr. Robinson, I decided I was no longer going to see Dr.Memar for any of my more important dermatological needs.” (Gordon Tr. 736). Conveniently forgotten was that after fourteen months of treatment at Dr. Robinson’s office, Ms. Gordon went to Memar when faced with the prospect of melanoma. In fact a pre cancerous mole was removed by Dr. Memar at that time and confirmed by biopsy.
(6) Finally, Tina Guttierez, the government’s own witness who administered Ms. Gordon’s IPL treatments, testified without contradiction that Ms. Gordon’s AK’s were so pervasive that she thought that some were actual skin cancer.
f) Ex-FBI agent present at meeting Dr. Memar had with Blue Cross and Blue Shield in January 2013
i) In this meeting, Dr. Memar was told that his treatment of patient 2 was fraudulent. The agent was asked what Dr. Memar’s reaction was. The agent said that Dr. Memar got angry and denied the charges (paraphrase).
(1) Mr Lee in his closing argument said made a “misstatement” and said that I confessed. The travesty is that both I and this ex-agent contradicted Mr. Lee’s repeated and loud “misstatement.” This “misstatement” was the last word heard by the jury. YOU BE THE JUDGE AS TO THE FAIRNESS OF THIS TRIAL.
g) Dermatologists called in by the government
i) Dr. Robinson (she saw patient 7 and 8 around the time Dr. Memar was treating them)
(1) Robinson, who was clear that there is no single treatment for AK and certainly no standard of care that precludes treatment of AK with IPL alone.
(2) Robinson also rejected the significance of the indictment patients’ inability to remember whether
they were told they had AK years ago, since even her current patients commonly do not recall what she has told them
(3) She conceded that these two patients indisputably had several other skin conditions that she had neglected to note.
(4) She said that she would not have noted actinic keratosis lesions if she was not looking for them or was instead focusing on other skin conditions
(5) Robinson conceded that her charts for these patients included all of the symptoms of actinic keratosis
(6) Robinson would never have said that Ms. Gordon never had AK, especially since Ms. Gordon had a “history of blistering sunburns”–making her a classic candidate for AK
(7) Robinson’s testimony actually buttressed Dr. Memar’s diagnosis of AK, and most assuredly did not support the absence of AK beyond a reasonable doubt, especially since all of the doctors admitted that dermatologists can reach differing diagnoses concerning AK.
ii) Dr. Ross (government’s expert witness)
(1) Ross never viewed a single patient file and thus offered no testimony whatsoever on the critical issue of whether any of them had actinic keratosis.
(2) He conceded, however, that there is no standard of care that prohibits treatment of actinic keratosis with IPL alone, just as he admitted that it involved low side-effects (downtime and discomfort)
(3) he conceded that a doctor who administered IPL alone for AK in the good faith belief of its effectiveness has notdone “anything wrong.”
(4) There can be no doubt as to Dr. Memar’s belief in the efficacy of IPL without Levulan for treating actinic keratosis given his use of that treatment for the eight biopsy-confirmed AK patients called by the defense.
(5) Ross stressed that not seeing AK’s “happens a lot” when the dermatologist is focused on other skin conditions
h) Summary from what the government showed against Dr. Memar
(1) The government accused Dr. Memar that the 8 patients did not have actinic keratosis. However, no doctor examined the patients and definitively said that they did not have actinic keratosis. So where does the government get off making such statements? In fact, each of the patients presented the classic symptoms of actinic keratosis by their own admission, two of which were corroborated by the charts of another doctor. No doctor, including the government’s primary expert, Dr. Ross, even opined that these patients did not have actinic keratosis. And each patient was treated with an internationally recognized modality for that condition.
(2) The government accuses Dr. Memar of fraud since the patients were treated for so long, but this is normal, as Goldberg had AK patients whose treatments spanned 30 years. Also peer reviewed publications were presented showing the use of IPL for actinic keratosis over a period of 2 years.
(3) The government disputed the effectiveness of IPL for actinic keratosis, however, we presented published data from around the world showing world-wide recognition of IPL alone as effectivefor treating actinic keratosis.
(4) The government accused Dr. Memar of confessing at his meeting with Blue Cross in January 2013 to doing photorejuvenation on patient 2. This implied a cosmetic rather than a medical use of IPL.
(a) Dr Memar’s response on the stand:
(i) I never… said photorejuvenation. That is a, I hate to use the word, fib. That is not correct. I was not doing it for photorejuvenation
(b) To be sure, had Dr. Memar confessed, Blue Cross would have issued an immediate demand refund letter in response to the alleged confession to the assemblage. However, no refund was demanded.
(i) BCBS had merely asked Dr. Memar to thereafter provide additional support for his
position that the IPL treatments were medical rather than cosmetic–a request it never
would have made had he just confessed that they were cosmetic
(5) Finally, the government cannot brush its misstatements aside as harmless missteps. As it repeatedly told the jury, Dr. Memar’s purported confession was its “most important” evidence.
4) Dr. Memar’s witnesses
a) Eight patients called by the defense, who included two retired police officers, business executives, an engineer, and a priest, placed beyond doubt Dr. Memar’s faith in IPL and the chronic nature of that condition.
i) Their actinic keratosis for which each received IPL year after year was biopsy-confirmed and hence indisputable.
b) Dr. David Goldberg, dermatologist
i) Reviewed the actual patient charts, unlike the government’s expert witness. He did not see any irregularities in the charts
ii) He treated his own wife’s actinic keratosis with IPL
iii) He called IPL an elegant treatment for actinic keratosis
5) Dr Memar took the stand
a) Mr. Lee asked Dr. Memar if he had confessed in the January 2013 meeting with BCBS that he performed photorejuvenation.
i) Dr. Memar responded with “No, I did not; where is your evidence?”
ii) Mr. Lee ignored Dr. Memar at this point and returned to his podium.
iii) However, what happened next changed the course of the trial. In his closing argument, Mr. Lee repeatedly misstated that I had confessed at that meeting even though I told him less than an hour earlier that I denied it and the ex-FBI agent present in the meeting confirmed my statement in his testimony.
In short, Mr Stephen C. Lee ended his final statement with loud and repetitive “he admitted it,” and this was the last word the jury heard. After a few hours of deliberation, I was found guilty of medical fraud and giving fraudulent information for all 8 patients that the government listed. That means the jury determined beyond a reasonable doubt that Dr. Memar knew all 8 patients did not have actinic keratosis but treated them anyway. As shown above, no evidence presented by the government proved beyond a reasonable doubt that Dr. Memar knew these patients did not have pre-cancers and treated them anyway. Remember patient number ii from above, she had a biopsy proven skin cancer; she was prescribed Solaraze® gel, which is only FDA approved for actinic keratosis and Dr. Memar diagnosed her with actinic keratosis. How can it be believable that a person with a skin cancer is devoid of pre-cancers beyond a reasonable doubt. She even in court stated that Dr. Memar said something about pre-cancers, but Mr. Stephen C. Lee extended his neck and asked if Dr. Memar had toldher she has actinic keratosis, to which she said no. Why this game of semantics?
With all this overwhelming evidence in support of Dr. Memar and the misstatement of Mr. Lee, why was Dr.Memar found guilty?