U.S. v. Martinez
| Citation | 588 F.3d 301 |
| Decision Date | 01 December 2009 |
| Docket Number | No. 06-4206.,No. 06-3882.,06-3882.,06-4206. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jorge A. MARTINEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Jonathan P. Witmer-Rich, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Nina Goodman, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Jonathan P. Witmer-Rich, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Nina Goodman, United States Department of Justice, Washington, D.C., for Appellee.
Before: KEITH, COLE, and WHITE, Circuit Judges.
A jury convicted Defendant-Appellant Dr. Jorge A. Martinez of eight counts of distribution of controlled substances, in violation of 21 U.S.C. § 841 (Counts 2-5, 7-8, and 10-11); fifteen counts of mail fraud, in violation of 18 U.S.C. § 1341 (Counts 13-27); ten counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts 28-37); twenty-one counts of health care fraud, in violation of 18 U.S.C. § 1347 (Counts 38-58); and two counts of health care fraud resulting in the death of patients, in violation of 18 U.S.C. § 1347 (Counts 59-60). Martinez's appeal is based on his claims that the evidence was insufficient to support his conviction and that the district court's admission of a video portraying a non-witness physician performing medical procedures constituted reversible error. Martinez also argues that his sentence is both procedurally and substantively unreasonable. We AFFIRM.
Dr. Jorge A. Martinez, an anesthesiologist, operated a pain-management clinic in Parma, Ohio. As part of his practice, Martinez regularly prescribed controlled substances and administered injections to ease his patients' pain and charged the cost of the prescriptions and injections — billed as "nerve blocks" — to the patients' private insurance carriers, Medicaid, Medicare, or the Ohio Bureau of Workers' Compensation ("BWC") (collectively "health care benefit programs"). The bills used standard billing codes to identify the services for which Martinez requested compensation. Martinez generally advised his patients to receive nerve-block injections every one to two weeks, and he wrote his patients prescriptions for oral pain medication to use during the periods between injections.
The Federal Bureau of Investigation ("FBI") began investigating Martinez for health care fraud in the summer of 2002. At that time, as part of an unrelated investigation, the FBI noticed that Martinez ranked the highest among Ohio medical practitioners in submitting claims for reimbursement for certain procedures to Blue Cross/Blue Shield and that he ranked well above his Ohio peers for billing codes for certain medical procedures. During this period, the FBI also became aware that the Office of the Inspector General of the United States Department of Health and Human Services had received a complaint from its Medicaid unit regarding Martinez's billing practices. FBI Agent Jennifer A. Boyer thereupon began an investigation. As part of its investigation, the FBI enlisted one of Martinez's employees, Cindy Bayura, a nurse, to carry an audio-recorder for two days and a video camera for eight days to capture covertly the interactions between Martinez and his patients. Based on the evidence gathered, the Government obtained a search warrant for Martinez's files, arrested him, and indicted him.
The Government's theory at trial was that from about January 1998 until September 2004, Martinez engaged in fraud and endangered his patients by omitting physical examinations, ignoring "red flags" of painkiller addiction, giving appreciably more injections than were medically necessary or advisable, and providing at-risk patients with treatments that would leave them dependent on him for pain-suppressant prescriptions. According to the Government, Martinez hinged patients' receipt of oral pain medication prescriptions on their willingness to visit his office and receive nerve-block injections, which Medicare, Medicaid, and other insurance companies reimbursed at higher rates than other injections and office visits. The Government also argued that Martinez's fraud involved ignoring his patients' medical needs, resulting in the death of two patients.
To support its theory at trial, the Government presented evidence that Martinez's administration of injections to patients far exceeded the number administered by other pain-treatment doctors in Ohio. For example, the Government admitted BWC reports showing that Martinez gave each patient an average of sixty-four nerve-block injections per year, while the state average for pain-treatment patients was only 2.5 injections per year. Also, on the days that patients received injections, Martinez gave his patients an average of 4.14 shots in one visit, while the statewide average was only 1.18. Additionally, the Government presented evidence that Martinez did not inform patients of the "optional" nature of the injections or of the potential risks and side effects.
The Government's evidence also established that Martinez saw many more patients per day than other Ohio doctors, which, according to the Government's theory, meant that Martinez provided substandard medical care. According to sign-in sheets maintained at Martinez's offices and testimony from former employees, Martinez often saw well over 100 patients per day and, on average, around sixty patients during the eight-and-one-half hours his office was open. At trial, members of Martinez's staff testified that he frequently spent only two to five minutes with patients during appointments and performed little or no physical examination of patients during these brief visits, but Martinez billed the visits under billing codes used for more extensive office visits. Relatedly, the jury heard evidence that a doctor who was properly treating his patients for pain could not possibly see that number of patients each day.
The Government's expert witness, Dr. Douglas Kennedy, a pain-management specialist, reviewed the videos of office visits and the medical records for the patients named in the indictment. He testified that Martinez's billing to health care benefit programs was "not appropriate in any fashion," (Joint Appendix ("JA") 1359), because the procedures and office visits for which Martinez submitted bills "could not have been performed." (JA 1359.) Moreover, even if the procedures were performed, "they were not medically necessary in any way." (JA 1359.) Dr. Kennedy further explained that the appropriate medical practice for administering nerve-block injections allows for no more than "three injections over three to six months" unless additional injections are "absolutely indicated and everything else has been ruled out," (JA 1303, 1305), but that Martinez routinely provided as many as twenty injections to patients at their weekly or biweekly appointments. Additionally, Dr. Kennedy concluded that Martinez's prescriptions for controlled substances could not have been for legitimate medical purposes and that such prescriptions were outside the bounds of accepted medical practice. Because of all these factors, Dr. Kennedy testified that Martinez and his patients did not have a true doctor — patient relationship.
The jury also heard evidence that Martinez did not comply with accepted standards of medical practice, including the Ohio State Medical Board's guidelines for prescribing controlled substances for intractable pain. Martinez's patients likewise testified that he prescribed high dosages of pain medications without any physical examination or discussion of their symptoms. And another government expert witness, Dr. Theodore Parran, a specialist in pain management and in the treatment of addiction, reviewed the files for those patients named in the indictment and testified that Martinez prescribed medication for patients he saw for only a few minutes and frequently ignored "red flags" indicating that a patient's drug use "was out of control." (JA 2084-91, 2134-66.)
The Government also argued that Martinez's techniques were outside the bounds of accepted medical practice. The jury was repeatedly shown videos of Martinez treating his patients by walking into an exam room, with needle in hand, quickly "jabbing" the patient and sometimes "twisting" the needle, then quickly leaving the room. Dr. Kennedy testified that this technique, without any physical examination or the "palpatation of topical landmarks," made it impossible for Martinez to "know where the medicine [was] going," and Martinez could not have reached the nerves using such an unorthodox technique. (JA 1313-14.) Dr. Kennedy also relied on a video of Dr. Mark Boswell administering nerve-block injections to demonstrate the "proper" way to perform the medical procedures for which Martinez billed.
Finally, the Government presented evidence regarding several patients who it alleged had died as a result of Martinez's care, including detailed evidence about the circumstances surrounding the deaths of two patients, John Lancaster and Blair Knight. The Government presented evidence that Martinez's course of treatment for these two patients led to their deaths.
In his defense, Martinez called several former employees and fifteen former patients, all of whom testified that Martinez provided thorough and effective pain treatment. Martinez also called Dr. Thomas Stinson, an anesthesiologist, as an expert witness, who testified that the nerve-block injections performed by Martinez were within the bounds of accepted medical practice.
Martinez was charged in a sixty-count indictment. The district court dismissed Count 1 (conspiracy to distribute drugs) after all of the evidence had been submitted. Following a week-long deliberation, on January 12, 2006, the jury acquitted Martinez on...
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