Angiograms are medical tests that measure the extent of a patient's arterial stenosis (put plainly: the degree of blockage of the heart arteries). For instance, a cardiologist reviewing an angiogram could conclude the patient had 60% blockage. But angiograms, as a matter of course, are subject to widely varying interpretations: one cardiologist may conclude a blockage of 60%, while another reviewing the same angiogram may conclude the blockage is only 30%. A variance of 20% is considered within the standard range and research studies have shown that much, much greater variances are quite common.
As a general rule, when an angiogram is read to indicate a blockage of 70% or more, the surgical insertion of heart stent is the accepted standard of care. To sum up the dilemma: one cardiologist acting in good faith could conclude from an angiogram that a patient’s blockage was greater than 70% and a stent warranted, while another cardiologist also acting in good faith could conclude that the blockage was only 30% and no stent necessary. It is in this context that the government prosecuted Dr. Richard Paulus, who has been described to me as a very talented, caring and hard-working cardiologist practicing at King's Daughter Medical Center (KDMC) in Ashland, Kentucky. Dr. Paulus’ case has twice gone to the Sixth Circuit, which both times reversed the district court, once to his detriment and the latest to give him either another day in court or some hope of peace with a government whose resources are limitless. This post will deal with part 1 of Dr. Paulus’ ordeal or, as the Sixth Circuit put it, Paulus I, United States v. Paulus, 894 F.3d 267 (6th Cir. 2018).
Although the Sixth Circuit later described Dr. Paulus’ as having performed an “incredible” number of angiograms, the government’s charges against him were modest: one count of health care fraud and twenty-six counts of false statements, all alleged to have arisen from a practice of inflating the degree of stenosis indicated by angiograms to provide a pretext to insert a heart stent. The government’s proof failed utterly as to eleven of the false statement charges, and it moved to dismiss those at trial. The jury struggled with the remaining charges, the trial judge, Hon. David Bunning, giving an Allen charge, but eventually found Dr. Paulus guilty of eleven charges and not guilty of the remaining five.
The district court sustained Paulus' motion for judgment of acquittal. Paulus Opinion Vacating Jury Verdict. In essence, the district court ruled that fraudulent intent could not be proven because reasonable cardiologists acting in good faith could and too often did reach widely varying conclusions about the degree of stenosis indicated by a angiogram. The district court rejected the government’s arguments that the verdict should stand because “the jury viewed the angiograms themselves and could determine whether a significant lesion existed or not,” and there was “circumstantial evidence” including the amount of money Dr. Paulus made from working so hard and well, “the fact that [Dr. Paulus] performed more cardiac procedures than his peers,” testimony from other KDMC who “believed Dr. Paulus was performing unnecessary procedures,” and that the number of procedures went down after the government began investigating, a display of remarkable ignorance of the monumental disruptions that dealing with a federal government investigation inflicts on any individual or institution.
The Sixth Circuit reversed the district court and reinstated the convictions. The ultimate basis for this decision is the paramount role of the jury to assess and credit (or not) the reliability and believability of expert testimony once that testimony has been properly admitted. 894 F.3d at 277. As support for the jury’s verdict, the court recited the government’s expert witness testimony to the effect that Dr. Paulus so often overstated the degree of stenosis to establish that he “routinely exaggerated what he saw on his patients’ angiograms[.]” Id. This evidence plus that regarding Dr. Paulus’ earnings, “injured patients’ testimony, and other evidence about KDMC’s behavior supported an inference that something was amiss,” all of which showed a “lengthy pattern of fraudulent over-diagnosing by Paulus.” Id. at 278.
The Sixth Circuit began its opinion by quoting Mark Twain’s observation that “there are three kinds of falsehood; lies, damnable lies and statistics.” The government premised its case on statistical evidence drawn from its experts’ testimony to the effect that Dr. Paulus so often over-read the degree of blockage indicated by an angiogram that it proved fraudulent intent, especially when it was considered how many angiograms he performed and how much they and the stent procedures that followed contributed to his income.
Paulus II regards the statistical evidence that the government withheld from Paulus in violation of the Brady rule.
