United States v. Pon, No. 17-11455

• Decision Date: 29 June 2020
• Docket Number: No. 17-11455
• Citation: 963 F.3d 1207
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Ming PON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

963 F.3d 1207

UNITED STATES of America, Plaintiff-Appellee,

v.David Ming PON, Defendant-Appellant.

No. 17-11455

United States Court of Appeals, Eleventh Circuit.

June 29, 2020

Michelle Thresher Taylor, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, TAMPA, FL, for Plaintiff - Appellee.

Steffen Nathanael Johnson, Paul N. Harold, Wilson Sonsini Goodrich & Rosati, PC, WASHINGTON, DC, J. Richard Kiefer, Bingham Greenebaum Doll, LLP, INDIANAPOLIS, IN, Thomas L. Kirsch, Winston & Strawn, LLP, CHICAGO, IL, Robert Stuart Willis, Willis & Ferebee Law Office, JACKSONVILLE, FL, for Defendant - Appellant.

Before ED CARNES, MARTIN, and ROGERS,^* Circuit Judges.

ED CARNES, Circuit Judge:

A jury found David Pon guilty of twenty counts of health care fraud, in violation of 18 U.S.C. § 1347, and the district court entered a judgment of conviction on the verdict. After finding that Pon's fraud scheme resulted in a loss of nearly $7 million, the court sentenced him to 121 months in prison. He appeals his convictions and sentence.

I. FACTS

Pon was an ophthalmologist.¹ As a sole practitioner, he established his practice with a main office in Leesburg, Florida, and a satellite office in Orlando. Many of his patients were elderly. He diagnosed hundreds of them with, and lasered their eyes to purportedly treat, a debilitating and uncurable eye disease known as wet age-related macular degeneration (WMD).

Here is how his scheme worked. Pon would run diagnostic tests on a patient. After diagnosing the patient with WMD, he would move on to the "treatment" phase, which involved lasering one or both of the patient's eyes. Pon would laser his patients’ eyes with the laser set on the lowest power setting and in micropulse mode.² He would then submit a claim to Medicare for the diagnostic tests and the laser session. As a result, he would receive from Medicare around $1,200 total for each set of diagnostic tests and lasering.

Pon would bill his micropulse laser sessions under Medicare code 67220, the code for "laser photocoagulation for [WMD], for a choroidal neovascular membrane," or in other words, "burning an area of abnormal leaking blood vessels with a laser." Laser photocoagulation is a treatment for WMD that creates a scar in the eye by "cooking" shut the abnormal blood vessels (feeder vessels) that are characteristic of WMD. But the extremely low power settings that Pon set his laser to before each session were not high enough to achieve coagulation, so his purported treatments left no scars and did not fit under code 67220. One expert testified that Pon's settings were "way too low" for coagulation purposes, and that his method was tantamount to "jump-start[ing] [a car] off a flashlight. It's so little energy."

And Pon agreed. He described his purported treatment technique — which he referred to as "the micropulse laser technique for treatment of feeder vessels" — as treating WMD while leaving "no or minimal scarring." According to Pon, "the whole concept" behind his purported treatment was to use the laser to heat up the WMD feeder vessels "without causing a burn." His intention was "to get the effect from the laser without causing a burn, coagulation." In fact, according to Pon, he would "virtually never get a scar or a burn" if he did his "technique properly." But Pon continued to bill Medicare for his laser "treatments" under code 67220 for laser photocoagulation — or laser scarring.

And Pon became a top Medicare biller of WMD laser scarring treatment, billing Medicare for his micropulse laser (which is intended not to create a scar), under code 67220 for laser photocoagulation (which is intended to create a scar). The percentage of his patients whom he diagnosed with WMD and billed Medicare under code 67220 for laser photocoagulation treatment substantially increased over the years. Around 2006, drug injections had supplanted laser photocoagulation as the typically favored WMD treatment method, so other ophthalmologists’ laser treatments and billing amounts for laser photocoagulation went down. Pon's, by contrast, went up dramatically.

Pon's practice produced puzzlement and sowed suspicion. Other doctors who also treated Pon's patients were puzzled about his WMD diagnoses and laser "treatments." In the fall of 2008, for example, Virginia-based doctor Robert Vogel was treating his longtime patient, D.M., and noticed that the 83-year-old had several left-eye maladies, but not WMD. Because D.M. would be in Florida for the winter months, Dr. Vogel told him to check in with an eye doctor after he got there. D.M. chose Pon, who diagnosed him with WMD and micropulse lasered his eyes. When D.M. returned to Virginia a few months later, Dr. Vogel was "shocked" when D.M. told him that Pon had lasered both of his eyes. Dr. Vogel examined both eyes, did not see WMD in either of them, and could not understand why either one would have been lasered. Nor did Dr. Vogel see a scar in either eye that would indicate Pon had used a laser at settings that would have treated WMD if D.M. had actually suffered from it. This "unusual" situation prompted Dr. Vogel to tell D.M. to find a doctor other than Pon the next time he went to Florida.

Other experts observed similar anomalies involving Pon's practice and patients. Optometrist Sam Williams referred some of his own patients to Pon, who diagnosed every one of them with WMD. Dr. Williams, who has more than forty-five years of experience as an optometrist, became concerned when some of those patients told him that Pon had lasered their eyes on multiple occasions. As a result, Dr. Williams sent them to other ophthalmologists for second opinions about the medical necessity of the suspicious laser treatments. "[O]n every occasion" the ophthalmologists found that there was no sign Pon had lasered those patients’ eyes in a way that would actually treat WMD or that the patients needed any laser treatment for any eye disease. Dr. Williams stopped referring his patients to Pon.

Ophthalmologist and retinal specialist Elias Mavrofrides discovered much the same thing. He examined at least thirty of Pon's patients and determined that, although many reported having undergone repeated laser treatment by Pon for WMD, their eyes showed no signs of the disease. Many of Pon's patients told Dr. Mavrofrides that they were not sure why Pon was lasering their eyes, but "were told that they would lose vision without treatment." Dr. Mavrofrides thought that Pon's reported use of lasers on his patients "over and over and over [was] extremely atypical or unusual." In 2008 an optometrist referred to Dr. Mavrofrides a patient Pon had diagnosed with WMD and lasered eight months in a row. After examining the patient, Dr. Mavrofrides wrote a letter to the optometrist stating that he "honestly d[id] not see any necessity for the [laser] treatments [the patient] has had."

Sometime before the fall of 2011 the government discovered Pon's scheme. It happened when Special Agent Christian Jurs conducted a data analysis to determine whether any doctors were billing Medicare under codes associated with what he was told were outdated WMD treatment methods, including laser photocoagulation.³ That analysis revealed that Pon was a "significant outlier" with respect to the Medicare claims he submitted under 67220, the billing code for laser photocoagulation. In 2010, for example, Pon had submitted claims under that code for approximately 93 percent of his Medicare patients, while his ophthalmologist peers had submitted claims under that code for an average of only seven-hundredths of one percent of their patients. That is a disparity of about 132-to-1. The disparity prompted Agent Jurs to run Pon's name through a complaint database, which showed that an unidentified person had lodged a complaint about Pon's WMD treatment. And that, in turn, prompted him to interview approximately thirty doctors who had seen patients whom Pon had diagnosed with WMD and micropulse lasered. After Agent Jurs conducted some of those interviews, the government obtained a warrant to search Pon's offices.

In September 2011 federal law enforcement officers executed the search warrant and seized Pon's patient files along with thousands of photographs and videos of his patients’ eyes. The next month the Centers for Medicare and Medicaid Services sent Pon a letter notifying him that it had suspended his Medicare payments based on what it identified as "credible allegations of [health care] fraud." The suspension letter stated that between 2004 and 2011 Pon had submitted Medicare claims under codes associated with laser photocoagulation treatment and a type of WMD diagnostic test "that were disproportionate to claims submitted by other ophthalmologists for these codes," and "that many of [Pon's] patients did not have the underlying medical conditions that would support the procedures represented by these codes."

Sometime after Pon's Medicare payments were suspended, Agent Jurs retained an expert, Dr. Thomas Friberg, to review the photos and videos of the eyes of about 500 patients whom Pon had diagnosed with WMD. Dr. Friberg was asked to review whether Pon's patients did, in fact, have WMD. Dr. Friberg had obtained his medical degree from the University of Minnesota, completed an ophthalmology residency at Stanford University Medical Center, and held fellowships at the Harvard Medical School and the Duke University Eye Center. He is a professor of ophthalmology and a professor of bioengineering at the University of Pittsburgh, has authored or co-authored more than 175 articles in peer-reviewed publications, and has, over the course of his four-decade career, received more than $7 million in grants to study age-related eye diseases, including WMD.

Dr. Friberg's review of the more than 10,000 images of the eyes of patients whom Pon had diagnosed with WMD and "treated" took him about a year to complete. He found what he saw "shocking." He realized that he "was...