Mistatements (untruths) stated by the government against Dr. Memar:

1.Government states: “Ladies and gentlemen, this is Government Exhibit 92, and this graph shows you when the defendant’s scheme began in 2007, January of 2007, and how it rose through the years throughout 2007, through 2008, through 2009, through 2010, peaking in January of 2011, and then continuing on until January of 2013. And the most important thing about this graph, ladies and gentlemen, besides the surge in actinic keratosis, it’s when it stopped. It stops suddenly in January of 2013. That’s when it supposedly ended. It all just stops, and it crashes to the bottom. Ladies and gentlemen, this crash was not due to the idea that patients were no longer getting actinic keratosis. This is because the defendant was  confronted by Blue Cross, and he gets caught.” (tr. 1170)

Dr. Memar’s explanation: Options a dermatologist clinically has for addressing 15+ actinic keratosis:

1.Destruction, code 17004

2. Photo Dynamic Therapy (PDT), Codes used: 702.0, J7308, 96567

3. Topical therapy—Solaraze gel, Imiquimod, Picato, 5-FU, Retinoids, Only code needed here would be 702.0

4.  Shaving lesion off. Codes are determined by size. (CPT codes 11300 to 11313)

5. Excising lesion. Codes determined by size. (CPT codes 11400 to 11646)

6. Monitoring lesions, since only .1-15% become malignant a dermatologist can monitor a lesion for change, and then treat. (Code 702.0)


This graph shows that on December 2012, BC/BS paid for 30 patients to have 15+ AKs destroyed, and in January 2013, BC/BS paid for 11 patients to have their 15+ AKs destroyed, and in February 2013, it paid roughly for 3 patients, and in March 2013, it paid for 3 patients to have their 15+ AKs destroyed. Then the numbers stated to climb. In April 2013, it paid for 4 patients and in May 2013, it paid for 5 patients. The government abruptly stopped the graph at that point of ascent. However, this graph represents only one choice out of 6 that Dr. Memar had to treat the 15+ AK patients in his practice. Remember, he had 600 AK patients only, and his expert, Dr. Goldberg, expected him to have 20,000 AK patients based on the size of his practice. (tr.894, 1096). Therefore, there was no over diagnosis of AKs in the practice to imply wrongdoing. In fact, no data showed that the meeting with BC/BS in Jan 2013 affected the number of AK patients in Dr. Memar’s practice.

This graph only captures part of option number 1, i.e., destruction. It totally ignores the AK patients in Dr. Memar’s practice who might have been treated by other methods like 2, 3, 4, 5 or 6. It also ignores the patients that BC/BS rejected or the money went towards their deductible. This bar graph clearly does not show number of patients getting AK. This graph shows payment made by BC/BS for 17004. 17004 is the destruction of 15+ AKs.  It in no way reflects what the government states as “…patients were no longer getting actinic keratosis…” This graph further does not capture patients with 15+ AK treated that payments went to deductibles or simply the claims were rejected, even though the procedure was done. Remember, this is the height of Obamacare deductible increases, so more was going to deductibles than years past. Furthermore, not included is the number of patients treated with other methods like PDT, topical creams, shaving off of the lesions. It also does not include the patients who had less than 15 AKs treated. This graph represents a conflict of interest, since BC/BS, who brought this case to the government in Jan 2013 also decided what claims it would reject). Secondly, if the doctor is told not to use IPL, which was his main method of billing 17004, it is logical that number would drop, as it did. However, the patients with AK remained in the practice. My lawyer and the gov, chose not to show the number of 15+ AK patients in my practice to my detriment. The conclusion the gov is reaching is illogical. The graph does not represent an outbreak of actinic keratoses. It represents a choice to use one of many options available to treat multiple actinic keratoses. The gov is knowingly misstating. This misstatement and misrepresentation of facts continued all the way to the 7th circuit court of appeal. How is this legal? Either the government, in this case represented by Mr. Stephehn Chahn Lee does not understand the facts in this graph or is knowingly misleading one of the highest courts in this nation. This must stop. It brings shame to the DOJ and Mr. Lee himself. If this new misstatement is intentional, then that constitutes a lie; if it is not intentional and yet one more “misstatement” I ask how did these DOJ representatives get through Phillips Academy, Yale and Columbia Law School. Did they make so many misstatements during their education? If a misstatement is made on a final exam, that constitutes a failure. Where else did you fail Mr. Lee? Mr. Lee puts www.footnotetv.com as his contact info, and the New York Times describes him as the “founder and operator of FootnoteTV, a Web site based in New York that connects issues on television shows to real life news events.”   That site does not seem successful. Do we have failures and flunkies appointed by President Obama prosecuting U.S. citizens? 

2.The Government: Mr Lee: So if he had been doing creams and gels and all the treatment methods that were still available to him, we would not have seen anything different in that graph. (tr. 1271)

Dr. Memar’s Response; Not true, when prescribing creams, the 17000 codes are not used and only ICD-9 code 702.0 would be used. The gov never showed total 702.0 alone before and after Jan 2013. Mr. Lee either does not understand basic dermatologic billing practices, excel, or the truth.

3.Judge States: Similarly, Dr. Memar’ s diagnoses of AK seemed to plummet after this meeting. (Judge opinion, Document#: 73, page 16)

Dr. Memar’s Response: My diagnosis of AK (702.0) did not plummet. That data was never shown. The judge only presents patient PK as an example in a table format. One patient cannot represent my entire diagnoses, in the plural.  That does not constitute a plummet. That is one patient.

Secondly, the graph above does not represent AK diagnosis. To conclude a plummet, you need to know the total 702.0 before and after Jan 2013. The gov omitted that crucial data. 


4.Government states: The way that he responded when he talked to Blue Cross shows you that he committed fraud. They ask him why he uses IPL, and he tells them the truth. He tells them, photorejuvenation. (tr. 1170)

Dr. Memar’s Response: Gov later admitted this is a misstatement.

5.Government: Mr Raman states in closing….Most importantly, though, ladies and gentlemen, one of the things to consider here is that the defendant told Blue Cross Blue Shield that the IPL treatments in connection with Kellie Siegel, these were for photorejuvenation (tr 1187)

Dr. Memar’s Response: No objection from defendant, but weeks later the gov admits this was a misstatement, but the jury did not know that. The jury was never told that this was not true when they came to a verdict.

6.Government: Photorejuvenation as form after form said and as he himself admitted to Blue Cross Blue Shield when confronted and caught by surprise. (tr. 1269)

Dr. Memar’s Response: This was not objected to and the judge never instructed the jury that the defendant never admitted to BC/BS. The government admitted this as a misstatement.


7. The Government: he has this clinical discussion with Blue Cross Blue Shield. And it’s at that time that he tells them the truth. He says, “I use the IPL for photorejuvenation.” (TR. 1203)

Dr. Memar’s response: This was not objected to by defendant’s council, but the government admitted that it was a misstatement weeks after the ruling.

8. The Government states: The witnesses testified that they left his office without ever hearing or without ever knowing that they had a very serious precancerous skin condition (tr. 1171)…… Mr Raman states….”none of them said that they were told they had a precancerous condition.” (tr 1184-1185)

Dr. Memar’s Response. This is not true and the actual patients speak to this.

a.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).

b.Siegel: 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).

c.Combs: She insisted that she received IPL treatments for medical, not cosmetic purposes. Thus, Dr. Memar gave her IPL for her “sun damage”–which actinic keratosis is, (Dr. Robinson Tr. 67)–before it “turned into something worse.” (tr. 402)

d.McMullen: by her own description, redness, scarring, and sun spots, all of which Dr. Memar told her had to be addressed.

e.Robinson: said that Dr. Memar may have mentioned “AK”–it “sounds familiar.”

f.Laurent: Dr. Memar said the spots could be “precancerous” and recommended IPL treatment (Laurent Tr. 609-610, 631). Memar wrote a letter to Dr. Fabros, the referring physician, 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. If Memar feared fraud, why would he put in writing his diagnosis and treatment to a colleague?

g.Jaroch: Jaroch remembered virtually nothing Dr. Memar told her 10 years ago, although he may have mentioned “AK.”

9.Government: And by the way, ladies and gentlemen, the 17004 code, that’s the code that garners the highest amount of reimbursement from insurance (tr. 1181)

Dr. Memar’s Response: Not true, PDT (Codes used: 702.0, J7308, 96567) garners the highest amount of reimbursement from insurance for AKx15. My mediocre lawyer did not state this and the gov misstated the truth.

10.Government: In closing, Mr Raman describes Dr. Ross… He told you that he’s a dermatologist from San Diego. He told you that he tested – that he is familiar with AK because he treats 85 to 95 percent of his – he spends 85 to 95 percent of his time treating patients at the Scripps Clinic. He says it’s one of the most common conditions that he treats (tr 1188)

Dr. Memar’s Response: Mr. Raman implies that Dr. Ross spends most of his time treating actinic keratosis, when that is not true. Dr. Ross said he sees patients 85-95% of his time (tr 1188) and 80% of his patient care is cosmetic (tr 597), which leaves only 5-15% of his time for medical patient care, like treating precancers and other skin conditions. Remember that Acne is the most common skin condition and not AKs. When is Dr. Ross treating medical conditions like actinic keratosis? If the only dermatologic medical condition he treats is actinic keratosis, the answer is a fraction of 5-15% of his time. Since he is not the skin cancer or actinic keratosis specialist at the Scripps Clinic, it is hard to believe that he gets all the AK patients. Therefore, logic would state that he sees very few AK patients compared to the average medical or Mohs dermatologist.

11.Government: that’s why there is more AK in San Diego than there would be in Chicago (tr.1188)

Dr. Memar’s Response: The Government provided no proof to this statement. Chicago is a much, much larger city than San Diego. In this day, people travel, and we have a concept of winter birds. Mr. Raman is assuming and misleading and in reality misstating.

12.Government: And he tells the FBI that he uses it for a specific purpose to try and make it seem like he’s fitting it into a legitimate use. (tr. 1203)

Dr. Memar’s Response: This is not true. It was never objected to by defendant’s counsel, and the source is FBI Special Agent Ashley Davis, who lied under oath to the grand jury who indicted me. This statement is false and should be thrown out, but the jury heard this and ruled based on it.

Memar tells Ms Davis, per her notes, the tools Dr. Memar uses to destroy AKs on 7/11/13: Q:.. You say that Dr. Memar discussed the treatment methods or you asked him about that for AKs isn’t that right? A. Yes. q. And, of course, you talked about the IPL, right? A. Yes. q. And he talked about with you electrocautery? A. We didn’t really discuss it, but he mentioned it was a treatment method. q. He told you that? A. Yes. q. It’s in your memo. He also talked about something called trichloroacetic acid? A. Yes. q. And you mentioned creams a few minutes ago? A. Yes. q. And then there was also Levulan that was mentioned, right. A. Yes. I asked him if he had Levulan.(tr. 664-665)Ms. Davis tells the Grand Jury under oath on 2015: q. When you talked to the grand jury about this case, you told them that other than the IPL that he had, he didn’t have anything to treat AK patients, didn’t you? A. I don’t recall. q. Would it help for you to take a look at your grand jury testimony? A. Yes.(Pause.) Yes. I said he really had no method to destroy actinic keratosis. (tr. 666)

Electrocautery and trichloroacetic acid are methods to destroy actinic keratosis, as defined by the code 17004. Ms. Davis forgot what she had written and perjured herself under oath. Are we expected to believe her account of how Dr. Memar diagnosed AKs? Is there any accountability? Can an FBI agent lie under oath and still be quoted by the assistant attorney general?

13.Government: And the case is about what he did with several hundred cosmetic patients that he saw between 2007 and 2013 (tr. 1205)

Dr. Memar’s Response: The gov presented 8 patients, not several hundred, out of my 30,000 patients. Of the 8, they showed no solid proof, but repeated the same falsehood, until it became believable. None of the government’s experts/competent witnesses reviewed any of the patient records at issue. This is similar to the recent cardiologist case. (tr 1096).

14.The Gov. states: Lee in Rebuttal… there really was a massive breakout of a chronic condition among his patient population that just happened to go away when Blue Cross Blue Shield simply told him that they would stop paying him for one treatment method. (tr 1262)

Dr. Memar’s Reply: False statement. No proof was shown that patients with 15+AK diminished in Dr. Memar’s practice. In fact, he chose other methods to treat those patients, but those numbers are conveniently omitted by the gov and my mediocre attorney never gathered them. The Gov only showed that BC/BS paid less (excluding denied claims and money that went towards deductibles) for one option out of six treatment options. The Gov. conveniently excluded data on the other options available to Dr. Memar.

15.The Gov: Lee in rebuttal… And trust him even though he has over time given different stories to Blue Cross Blue Shield, to the FBI, and even here in court. Ladies and gentlemen, after this trial, you know not to trust Omeed Memar (tr. 1262)

Dr. Memar’s Response: The false stories stem from Ashley Davis, FBI; Mr Raman, Gov; Mr. Lee, Gov, and ultimately BC/BS who thinks a skin cancer patient cannot have precancers. Whom should we trust?

16. The Gov: First, you know that the treatments are inappropriate because the patients did not have actinic keratosis (tr. 1269)

Dr. Memar’s Response: The only definitive way to determine this is a skin biopsy at the time of diagnosis. No such evidence was provided, and a claim that the patients did not have AK is false and slanderous against Dr. Memar.

17.The Gov. States: You also know that these treatments were not destroying actinic keratosis lesions because the defendant himself did not really believe this. (tr. 1270)

Dr. Memar’s Response: No proof that Dr. Memar did not believe IPL destroys AKs. He had evidence-based publications showing IPL cleared AKs, while the gov did not have any proof IPL did not destroy.

18.The Gov: And you know the treatments were not really destroying actinic keratosis lesions because when Blue Cross stopped paying for the IPLs, his practices and his billings would not have changed if he really had believed he had been treating patients for actinic keratosis lesions. (tr 1271)

Dr. Memar’s Response: This is an illogical statement. What does BC/BS payment have to do with the physics of IPL generating heat to destroy red and brown targets? There are other codes to use to treat or destroy 15+ AKs, but the gov conveniently did not show those.

19.The Gov: He billed the Tazorac and Solaraze using the 1700 series (tr. 1271)

Dr. Memar’s Response: These are creams that need to be used daily. Is he implying that I used the 17000 destruction codes when the patients used these creams daily at home? This is simply false. Solaraze is used twice daily. Was I billing 17000 codes twice daily? By this argument, I was getting paid every time the patient used their cream at home. There simply is no evidence of this.

20.The Gov: Mr Lee in rebuttal: All Blue Cross told him was, “IPLs, we don’t think -we think they’re cosmetic.” He didn’t fight back. He didn’t advocate for his position

Dr. Memar’s Response: Not true, I defended my use of IPL for AK destruction. This is Mr. Lee questioning Mr. Krupkowski (ex-FBI agent), who was present at the BC/BS meeting in Jan 2013: Question by Gov: Now, after Dr. Barnes told Dr. Memar about the peer reviewer’s findings, what, if anything, did Dr. Memar say in response? Answer by Mr. Krupkowski: Well, Dr. Memar disagreed with the peer reviewer’s findings. He said that, you know, his records could have been better, he could have done diagrams, but that doesn’t mean that he didn’t do the services that he had billed. And he questioned the bias of the peer reviewer because Blue Cross was paying for the peer review and had requested the peer review. (tr 366)

21.The Judge writes: Then Dr. Goldberg was directed to a 2011 article, which noted that “IPL can be effective and safe for the treatment of non-aesthetic facial and neck vascular lesions, ” a broad term that in Dr. Goldberg’ s opinion encapsulates AK lesions. (I d. at 924-25. ) However, that study noted that “IPL used for actinic keratosis is not the best tool for treating these lesions as it improves erythema but not “epidermal dysplasia” – effectively confirming what Dr. Ross said in his rebuttal article and trial testimony. (Judge opinion, Document#: 73, page 18)

Dr. Memar’s response: The only way to determine epidermal dysplasia is a biopsy, which was not done, so this is not a scientifically founded statement.

22. The Judge writes: Dr. Memar’s 2016 presentation never mentioned his own nearly decade-long experience purportedly treating AK patients with IPL alone, concluding that further study was necessary to say whether it was effective. (Judge opinion, Document#: 73, page 30)

Dr. Memar’s Response: After showing controlled peer reviewed studies that proved IPL alone cleared 53-55% of AKs, Dr. Memar understood that IPL is effective because it goes after red and brown lesions, which AKs are. However, further studies on effectiveness can also mean optimization of settings and patient selection to increase the already proven number of 53-55% efficacy. The total discussion slide was: IPL is a device that targets red or brown lesions; Actinic keratoses initially present with redness and some with pigmentation; IPL alone should be studied further for effectiveness in treating actinic keratosis.

23.The Gov.: records regarding one patient (Patient KS) and that she believed that defendant’s use of IPL for this patient had been cosmetic. 363-64.

Dr. Memar’s Response: Tr 363-364 in no way reflects Patient KS’s beliefs. This is a misleading statement and false statement. No one proved that Ms. Siegel did not have pre-cancers. However, the government keeps repeating this statement and expecting us to take it as a truth. The only way they can prove that Ms. Siegel did not have AKs is either by a skin biopsy, confocal microscopy, or another board-certified dermatologist ruling out AK after a close (preferably with sight enhancing tools, like the ones I used) inspection of Ms. Siegel. The dermatologist needs to specifically be looking for AKs and not find them. The government did none of the above. They just  repeated a falshood and expected it to magically be considered the truth. Many nefarious figures in the past have condoned such tacks. I expect higher from our judicial representatives. 

Patient Siegel stated: 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).

25. the Gov.:Specifically, defendant falsely diagnosed patients with a precancerous condition called actinic keratosis. A typical actinic keratosis lesion is a red and scaly bump on the skin. Tr. 514.

Dr. Memar’s response: The Gov tries to imply that the 8 patients they presented did not have AKs, because in some of their charts, the description of the AKs was noted as scaly plaques. Not all of the 8 had that description. They asked the patients if they has red scaly plaques and the patients said no. Therefore, the Gov uses this as proof that the patients did not have AKs. This is an argument of semantics for the few patients that had that description:

1.  The gov’s own Dermatologist expert, Dr. E. Victor Ross in fact admits that AK can manifest as barely red and barely palpable, (Tr. 521)

2. I always used a sight enhancing tool to visualize the lesions. In further support of Dr. Memar, and against the Government’s narrative, Dr. Ross states that “clinical” or “clinical-apparent” AK can be diagnosed through the use of the naked eye or through the use of a dermatoscope; Tr. 553-554; a tool the Government’s own witness Christine Gutierrez (“Ms. Gutierrez”) states that Dr. Memar uses, Tr. 448, and a tool the Government never shows Dr. Memar did not use.

3. For example, one patient who denied having red, scaly plaques was patient #8, AG: Dr. Robinson told her she had, including facial xerosis, (Gordon Tr. 755-56), Rhitidosis facialis (Gordon Tr.765-66), and “lesions” (Gordon Tr. 759-760)–despite her boast that “when it’s got to do with me and it’s got to do with a health condition that I have, I remember it.” (Gordon Tr. 736). Ms. Gordon also denied having scaly (i.e. dry) skin (Gordon Tr. 755-56). But she too used moisturizer (Gordon Tr. 762-63) and had been diagnosed by Dr. Robinson with “xerosis of the face,” which Dr. Robinson explained was “dry, scaly” skin.” (Govt. Exh. 83, Robinson 12/17/2012 chart for Gordon, Robinson Tr. 67)

4. 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 they were actual had actual skin cancer. (Guttierez Tr. 454-55)

5. Other charts show lines on a schematic of a face, stating either the number with the word AK or scalay patch. Therefore, all 8 were not described every time as having red, scaly plaques, even though a plaque through a magnifier might look different to the naked eye. Dr. Memar had a magnifier.

It is grand that the Gov wants to prosecute over semantics, but if two doctors differ in diagnosis, that is no grounds for criminal conviction in a democratic nation, and that is the U.S. Congress talking, not me:  The U.S. Congress states that it was never its intent with 18 U.S.C. § 1347 “to penalize the exercise of medical judgment of healthcare treatment choices made in good faith and which are supported by significant evidence or held by a respectable minority of those providers who customarily provide similar methods of treatment.” H.R. Conf. Rep. No. 104-736, at 255 (July 31, 1996).

The government created a well organized PR campaign against Dr. Memar, indicating that he stood to be given 120 years behind bars. How many times was Dr. Memar addressed by terms like, fraudulent, lied, “knew the patients did not have pre-cancers”, falsified records, and other slanderous words? Easily many times. How many times does an untruth need to be repeated before its accepted as truth? All were slanderous conjecture without an ounce of hard evidence.  The government forgot to prove beyond a reasonable doubt that I had intent to commit fraud. Intent is the essence of a fraudulent act and its missing here.

Therefore, the record is devoid of any evidence to show Dr. Memar had the “intent” to commit healthcare fraud or “willfully” made false statements, yet he was convicted! The conviction is a game changer and affects medical care by most specialties, whether they realize it or not.
Another More important oversight by the government was a disregard for an act of the U.S. Congress. The government’s witness disagreed with the effectiveness of the tool Dr. Memar used to treat precancers. The government presented this as a sign of Dr. Memar’s guilt. Dr. Memar presented five scientific publications supporting his claim that the tool has been shown effective in treating precancers. Dr. Memar’s expert witness stated under oath that more dermatologists werer using IPL for the treatment of AKs. The government attempted to use the differing opinion of physicians to prove guilt. This cuts directly against the underlying purpose of The United States Congress’18 U.S.C. § 1347. The U.S. Congress states that it was never its intent with 18 U.S.C. § 1347 “to penalize the exercise of medical judgment of healthcare treatment choices made in good faith and which are supported by significant evidence or held by a respectable minority of those providers who customarily provide similar methods of treatment.” H.R. Conf. Rep. No. 104-736, at 255 (July 31, 1996). The case went up for appeal before the 7th U.S. Circuit of Appeal on May 23, 2018. 

The new standard of care has been established by the U.S. Government:


Before treatment, a biopsy is needed for every premalignant lesion, including actinic keratosis (58 million Americans have actinic keratosis and currently physicians diagnose this visually; a biopsy would add an extra $29 billion dollars to AK treatments alone). Any diagnosis that is not backed up by secondary independent evidence (like a biopsy or CT scan) can be questioned as a criminal misdiagnosis. Therefore the clinical diagnosis of a physician is not good enough. This is the beginning of hyper-defensive medicine…..a very expensive venture and an unintended consequence of this Obamacare-driven prosecution.


Any delegated procedure needs physician examination before and after treatment to avoid criminality. A patient being treated for a brain tumor with radiation will need a visual examination of the tumor, most likely in the form of an MRI or CT scan, before and after each session; so if a patient is receiving 30 sessions of radiation, that would be an extra 60 scans with physician reading every time. This will create immense cost and unnecessary exposure to the patient, i.e., the worst of defensive medicine. Otherwise, a criminal act might have been committed.


If an insurance company does not agree with a doctor’s diagnosis or treatment, no longer will they need to request reimbursement. They can go straight to the Department of Justice, and have the doctor investigated for criminal conduct. Then the government may charge the practitioner with a crime without ever having the patient examined by another physician. This will create an immense cost burden on an already stressed health care system. This is exactly what happened to Dr. Memar.


Providers (like surgeons, radiation oncologists, etc) that use devices that destroy tissue (like tumors or blood vessels, etc) need verification of destruction (like scans, biopsies, etc), otherwise the destruction code used is a criminal offense.

This is an attack on medicine and affects multiple specialties in medicine that deal with insurance companies. We need to act now.

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