U.S. v. Campbell
| Citation | 845 F.2d 1374 |
| Decision Date | 12 April 1988 |
| Docket Number | No. 87-3466,87-3466 |
| Parties | 25 Fed. R. Evid. Serv. 960 UNITED STATES of America, Plaintiff-Appellee, v. Doyle E. CAMPBELL, Doyle E. Campbell, M.D., Inc., an Ohio corporation, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Thomas M. Tyack, argued, Thomas M. Tyack & Assoc. Co., Columbus, Ohio, for defendants-appellants.
Ann Marie Tracey, argued, Asst. U.S. Atty., Cincinnati, Ohio, for plaintiff-appellee.
Before MARTIN, GUY, and BOGGS, Circuit Judges.
On November 20, 1986, Dr. Doyle E. Campbell and his corporate alter-ego, Dr. Doyle E. Campbell, M.D., Inc., were charged in a multi-count indictment alleging that Dr. Campbell had billed for treatments he either did not perform or were unnecessary. Counts 1 through 45 charged each defendant with mail fraud, in violation of 18 U.S.C. Sec. 1341, based on checks received by Dr. Campbell from Nationwide Insurance Company. Counts 46 through 72 charged each defendant with filing false claims against the United States government, in violation of 18 U.S.C. Sec. 287, based on claims submitted by Dr. Campbell. The indictment also alleged that the defendants had aided and abetted each other with respect to each individual count, in violation of 18 U.S.C. Sec. 2. The defendants pled not guilty and were tried before a jury in federal court. The 72 counts of aiding and abetting were dismissed by the trial judge at the close of the government's case. Of the remaining 72 counts which went to the jury, the defendants were each found guilty of 34 mail fraud counts and 18 counts of false claims. In each case where the defendants were found guilty of submitting a false claim with respect to a particular patient, they were also convicted of the related count of mail fraud. Likewise, with respect to the 9 counts in which the defendants were found not guilty of filing false claims, they were also acquitted of the corresponding charge of mail fraud. Thus, of the 36 patients referred to in the indictment, the jury found defendants guilty of a total of 52 counts involving 25 patients and not guilty on 20 counts involving 11 patients.
On May 6, 1987, Dr. Campbell was sentenced to 14 months imprisonment on each count to run concurrent with each other and was fined $75,400. The corporate defendant received the same fine, with payment by either defendant to be credited against the other. For the following reasons the defendants' convictions are affirmed. 1
Dr. Doyle E. Campbell, an ophthalmologist, established his practice in southern Ohio in 1971. Many of Dr. Campbell's patients are elderly people who qualify for federal medicare benefits and state medicaid benefits. The Health Care Financing Administration (HCFA), a division of the Department of Health and Human Services, has contracted with Nationwide Insurance Company to administer the medicare claims in Ohio. Under the existing financing system, a doctor who treats a medicare patient is required to submit a "Medicare Health Insurance Claim Form" (HCFA form 1500) to Nationwide which, on behalf of HCFA, pays for a portion of the claim. The doctor is required to certify that "the services shown on this form were medically indicated and necessary for the health of the patient and were personally rendered by me or were rendered incident to my professional service by my employees." (App.1357). This case arose as a result of claims filed by Dr. Campbell seeking reimbursement for laser treatments which he performed on several of his medicare patients. The claims ranged from $900 to $950 of which $530 to $680 were covered by the medicare program. The government alleged that Dr. Campbell billed medicare for several treatments which were either not performed or were not necessary.
Dr. Campbell purchased an Argon laser in 1983 to treat patients who suffer from glaucoma. Glaucoma is a medical condition generally defined as increased internal pressure within the eye which causes nerve damage and leads to gradual loss of sight. (App. 467-68). One of the government's expert witnesses, Dr. Zalta, testified that nerve damage and corresponding reduction in vision must be present in order to establish the existence of glaucoma. Dr. Zalta also stated that high internal eye pressure, or ocular hypertension, will not necessarily lead to nerve damage because the tolerance for internal ocular pressure varies among individuals. The expert for the defense, Dr. Andrew, agreed with Dr. Zalta's general description; however, he also noted that some doctors define glaucoma in a broad sense to encompass all cases of elevated internal eye pressure. (App. 1045).
The laser can be used to treat glaucoma by placing small burns upon the trabecular meshwork which is the "drain" in the eye that permits fluids to leave the eye. This treatment is referred to as Argon Laser Trabeculoplasty (ALT). Initially, when the ALT procedure first became widely available, doctors were advised to administer 100 burns over a 360-degree radius of the eye at a maximum power setting of 1,000 milliwatts. Subsequent studies showed that effective results could be achieved with 40 to 100 burns at 600 to 1,000 milliwatts. All the expert witnesses, including the defense witness, Dr. Andrew, testified that these ranges represented the current standards of medical treatment. The doctors also agreed that glaucoma patients should be treated first with medications and eyedrops and that laser treatment should only be used if the maximum tolerated medicinal therapy proved ineffective. Defendant, however, cited a recent experimental study in which laser treatments are being used as an initial form of treatment. Dr. Weber, who appeared as an expert witness for the government, is currently participating in this study which will not be completed until 1989 at the earliest.
Dr. Campbell testified that he generally made 15 to 25 burns using a power setting of 300 milliwatts. His assistants testified that in most cases, Dr. Campbell only made 5 to 10 burns. Many of the patients testified that they received 5 or less "shots" based on the number of flashes and the distinctive "clicking" noise made by the machine when the laser was activated. Moreover, several of the patients testified that Dr. Campbell did not place a "gonioscopic lens" over their eye before the treatment. All the experts agreed that the use of such a lens was essential to effective laser treatment.
Defendant raises the following issues on appeal. First, defendant contends that the district court erred by allowing the government to present videotaped deposition testimony where the government had failed to establish that these witnesses were unavailable at the time of trial and that the depositions had been authenticated by the deponents. Second, defendant argues that the government should not have been allowed to call on two witnesses who were not mentioned in the indictment. The third argument relates to the admission of certain physical evidence including a check stub showing the cost of the ALT machine and a chart summarizing the patients' individual records. Finally, Dr. Campbell argues that he cannot be convicted of mail fraud and making false claims where he administered a recognized form of treatment for a patient's medical condition. We address these issues seriatim.
Dr. Campbell objects to the admission of the videotaped deposition testimony on several grounds.
Defendant argues that the court erred in failing to require the government to show that the witnesses were unavailable to testify at the time of trial. On February 4, 1987, the government filed a motion to take the depositions of several elderly witnesses whose health-related problems prevented them from traveling to Cincinnati. The defendant did not object to the motion. In granting the government's motion, the district court stated:
Federal Rule of Criminal Procedure 15 provides that upon a showing of "exceptional circumstances" and "in the interest of justice," the Court may order the taking of testimony of prospective witnesses by deposition. This Court concludes that such exceptional circumstances have been shown in this case. It has been shown that the witnesses in question are all Medicare beneficiaries upon whom the defendant is alleged to have performed the Argon laser trabeculoplasty; also, it has been shown that these witnesses have severe difficulties which may prevent their testimony at the trial of this matter.
(App.24).
On February 20, 1987, the United States moved pursuant to Rule 15 of the Federal Rules of Criminal Procedure to use the depositions of several witnesses at trial based on the witnesses' unavailability under Rule 804(a) of the Federal Rules of Evidence. Defense counsel objected to the use of the depositions at trial, and after lengthy argument, the objection was overruled. (App.852-870).
Rule 15(a) and (e) of the Federal Rules of Criminal Procedure provides in part:
(a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties, order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place....
....
(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence....
Federal Rule of Evidence 804(a) provides in part:
(a) Definition of Unavailability--"Unavailability as a witness" includes situations in which the declarant--
....
(4) is unable to be...
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