United States v. Chalhoub

• Citation: 946 F.3d 897
• Decision Date: 07 January 2020
• Docket Number: No. 18-6180,18-6180
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anis CHALHOUB, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

946 F.3d 897

UNITED STATES of America, Plaintiff-Appellee,

v.Anis CHALHOUB, Defendant-Appellant.

No. 18-6180

United States Court of Appeals, Sixth Circuit.

Argued: July 30, 2019

Decided and Filed: January 7, 2020

ARGUED: Paul Shechtman, BRACEWELL LLP, New York, New York, for Appellant. Andrew E. Smith, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. ON BRIEF: Paul Shechtman, BRACEWELL LLP, New York, New York, for Appellant. Andrew E. Smith, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

Before: SILER, STRANCH, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge.

A jury convicted Dr. Anis Chalhoub on one count of defrauding health care benefit programs under 18 U.S.C. § 1347. A cardiologist, Chalhoub implanted permanent pacemakers in patients who—it turned out—did not need the devices or the slew of tests that he ordered before and after surgery. On appeal, Chalhoub does not challenge the legal sufficiency of the evidence supporting the jury’s verdict. Rather, he alleges that the district court repeatedly admitted evidence unduly prejudicial to him—and to which he could not effectively respond. Although some of the government’s tactics here leave something to be desired, Chalhoub’s arguments ultimately prove unavailing. We AFFIRM Chalhoub’s conviction.

I.

Dr. Anis Chalhoub practiced invasive cardiology in London, Kentucky, with several practice groups between 1999 and 2013. From 1999 to 2008, Chalhoub practiced with a group of physicians called Cardiovascular Specialists. Chalhoub then left Cardiovascular Specialists to start his own practice in 2008, which he named Cardiovascular Specialists of the Cumberlands. Two years later, Chalhoub sold his practice to St. Joseph Hospital, a Kentucky hospital system, and joined a group of cardiologists called the Cumberland Group as an independent contractor. When the Cumberland Group disbanded, several Cumberland Group physicians—including Chalhoub—joined St. Joseph Hospital as full-time employees in early 2012. Chalhoub worked at that hospital for a little more than a year before being terminated in June 2013.

While in London, Chalhoub had no trouble staying busy. Indeed, Chalhoub’s productivity—measured by the number of patients he treated and the procedures he performed—set him apart from his peers. To show just how busy Chalhoub was, the Government used Chalhoub’s 2007 productivity statistics as a point of comparison. A national survey of cardiologists that year revealed that 75% of American cardiologists performed 336 or fewer stress tests

. Chalhoub, by contrast, performed 853. (R. 145, Tr. at PageID #3118.) And that same year, Chalhoub conducted about 2,000 more office visits than the average invasive cardiologist.

For Chalhoub, more procedures meant more compensation. For a simple office visit, Chalhoub would request reimbursement from the patient’s insurer and submit a code corresponding to the nature of the visit. The reimbursement process was slightly more complicated when Chalhoub performed a procedure. In that case, the patient’s insurer would make two payments—one to the physician who performed the procedure (the professional component), the other to the facility where the procedure occurred (the technical component). So if the physician performed the procedure at his office, he could collect both the professional and technical payment components from the insurer.

Under this fee-for-service arrangement, a physician’s profit motive might not always align with his duty of care. Consider Chalhoub’s specialty: cardiology. A healthy heart beats at least sixty times per minute, and when the heart rate drops below that threshold, the patient experiences a phenomenon called bradycardia. Sometimes, bradycardia warrants medical attention—and intervention. Inside the right atrium of the heart lies the sinus node, which functions as the body’s natural pacemaker by sending electronic pulses that cause the heart to beat. The sinus node can malfunction, particularly as patients become elderly, and when that happens, the heart will begin to beat irregularly (including too slowly or too quickly). Physicians may decide to treat this condition—called "sick sinus syndrome

"—by installing a pacemaker, a metal-coated electric device that regulates the heart rate. But bradycardia is not always cause for concern. Well-conditioned athletes, such as marathon runners, commonly have slower resting-heart rates, often dipping to just forty-five beats-per-minute. And even non-athletes may have slower heart rates at night when they sleep. Moreover, certain medications that treat hypertension—such as calcium-channel blockers and beta blockers—may also slow the heart rate. So a slow heart rate does not, automatically, warrant medical intervention.

Sometime around the fall of 2011, the Government grew suspicious that Chalhoub was performing unnecessary invasive cardiac procedures on many of his patients—and then billing their insurers, including Medicare. The Government informed St. Joseph Hospital, which then hired an outside firm, Executive Health Resources ("EHR"), to conduct an internal investigation of Chalhoub’s practices. Dr. Edward Solow, an experienced cardiologist, led the EHR team in its review of twelve pacemaker procedures that Chalhoub performed. Solow received the complete hospital record and all pertinent office records for each of the twelve patients and reviewed those records to determine whether there was any medical justification to install the pacemakers. Solow could not find support in any of the twelve cases for Chalhoub’s decision to install the pacemakers. Upon receiving the results of that investigation, St. Joseph Hospital terminated Chalhoub in June 2013.

The Indictment and Trial . A grand jury indicted Chalhoub on one count of health-care fraud in violation of 18 U.S.C. § 1347. The indictment charged him with executing or attempting to execute a scheme to defraud health-care benefit programs between March 2007 and July 2011.

At trial, the Government’s primary expert witness was Dr. David Spragg, a professor at Johns Hopkins University and practicing cardiologist. Spragg testified that he reviewed thirty-one procedures Chalhoub had performed, twenty-seven of which Spragg considered unnecessary. Spragg also testified more broadly about some patterns that he detected while reviewing records of Chalhoub’s former patients. Often, patients on heart rate lowering medications such as beta blockers would come to Chalhoub with nonspecific complaints—perhaps attributable to their medication. Chalhoub would first tell the patients to wear a Holter monitor

, a special device that would track their heart rate around the clock. And often, that device would show that the patient experienced nighttime bradycardia (that is, a heart rate of fewer than sixty beats-per-minute while the patient was asleep) but that the patient’s daytime heart rate was normal. But Chalhoub would tell the patients that they had sick sinus syndrome—and then install a pacemaker to regulate their heart rate. Even after a patient received the pacemaker, Chalhoub would order more testing—including the Holter monitor—for which he would bill the patient’s insurer.

Still more doctors testified at trial. The Government called Dr. Solow, who testified about his review of Chalhoub’s pacemaker installation practices. The Government also called four practicing cardiologists in Kentucky—Drs. Aaron Hesselson, Gery Tomassoni, John Gurley, and Oluwole John Abe—to testify about some reasons for installing a pacemaker. In fact, Hesselson had treated some of Chalhoub’s former patients. Hesselson noted that Chalhoub’s patients with pacemakers "seemed to be much younger than the average patient having a pacemaker put in." (R. 142, Tr. at PageID #2420.) And Hesselson testified in detail about his treatment of seven named patients in whom Chalhoub had installed a pacemaker. According to Hesselson, four of those patients never required a pacemaker to begin with, prompting him to either turn their pacemaker down or remove it altogether.¹ Finally, Hesselson testified more generally about his treatment of patients who came to him after Chalhoub had installed a pacemaker. Hesselson stated that he either turned down or turned off the pacemakers of "approximately twenty" of those patients. (Id. at PageID #2466.) That figure stood out to Hesselson. Indeed, Hesselson testified that over the course of his career, he had treated at least 5,000 patients with pacemakers, of which he could recall only one other patient whose pacemaker he needed to turn down. Hesselson, however, could not provide the names

of any of those twenty patients.

In its closing argument, the Government told the jurors that it had "identified approximately fifty examples" of pacemakers that Chalhoub had installed unnecessarily—the twenty-seven patients that Spragg identified plus the twenty unnamed patients that Hesselson described. (R. 148, Tr. at PageID #3944.) The jury convicted Chalhoub, and the district court sentenced him to forty-two months in prison. This appeal follows.

II.

Chalhoub contends that the district court made four erroneous evidentiary rulings during his trial, three relating to Federal Rule of Evidence 403. Under that rule, the court may exclude relevant evidence "if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. "We review a district court’s Rule 403 determination only for an abuse of discretion." United States v. Sassanelli , 118 F.3d 495, 498 (6th Cir. 1997). In doing so, we give "[b]road discretion" to the district court’s admissibility ruling—and we will not disturb the court’s judgment if that ruling, though erroneous, was harmless. United States v. Jackson-Randolph , 282 F.3d 369, 376 (6th Cir. 2002). Further,...