MARCH 25, 2002 VOLUME 9, NUMBER 39
On January 12, 2002, Elder Law Issues reported on the Medicaid fraud conviction of Massachusetts doctor Lorin Mimless (“States Vigorously Prosecute Medicaid and Medicare Fraud”). After his conviction Dr. Mimless filed an unsuccessful appeal with the Massachusetts Court of Appeals. Dr. Mimless read our report, and wrote to address some of the issues raised by his conviction and appeal. With his permission we reprint his letter:
“While I did appeal because of the manner in which the trial judge managed the jury over the newspaper article that appeared during the second day of jury deliberation, my appeal centered on prosecutorial misconduct and the judge stating that he would never talk to the jury without both sides present. The decision did not adequately address the issue of prosecutors purposefully leaking excluded material to the press during deliberation. No one else could have given the reporter the information in the article except the prosecution. They were not put under oath when they denied wrongdoing. What made it even more ironic is that I observed and overheard what the prosecutor told the reporter.
“Five jurors (not several) had the newspaper with them when they arrived at court. The judge read the article, perhaps on his way to work. Why would the jurors not do the same? What would five minutes have made to allow the defense to ask the jurors if they read the article. After a nineteen day trial, what juror is going to admit they read the article knowing if they admitted that to the judge, they would not be able to continue their deliberations.
“As far as willful blindness, the prosecution spent so much time creating stories about my lavish life style, would that have been enough to prove motive? Why the need for willful blindness? The expenditures described by the prosecution were contrived and flagrant lies. I never purchased any pornography nor did I own two homes in Rhode Island. I generated a lot of billings because I saw patients no one else would touch. Many were dual-diagnosed and needed to be seen briefly every week to control meds and prevent hospitalization. The times assigned to the codes were ridiculous and made-up just to make their spectacular claim, ‘Doctor bills for 50 hrs in one day.’ or ‘Dr bilks Medicaid while vacationing in the Carribean.’
“I had a busy psychopharmacological practice and worked many hours to see my patients. When the agents visited my office I told them if there were errors they mistakes in the billing but during trial much of that was excluded including business cards given to each of the secretaries “Do not bill on vacation”.
“I never trained anyone in billing. I hired a secretary initially because almost every bill I had submitted was being rejected. I hired my last secretary who made the most errors because she came highly recommended from an agency. After the first week I asked for a replacement. The agency begged me to keep her and waived the fee. She was friendly to my patients and insisted that she had experience in billing. I did not have the heart to fire her although I wish I had the brains.
“Doctors should be warned that if overzealous prosecutors can turn a civil case into a criminal one, they will do everything they can to get you convicted. They got me but I will continue to advocate for alternative mechanisms to determine fraud so that doctors who do not commit fraud but make errors do not get criminally prosecuted. Look at many of the cases like Patsy Vargo and others humiliated enough that they crawl away without realizing how they were railroaded.”
Dr. Mimless’ mention of Patsy Vargo refers to a Montana physician who was accused of “upcoding,” or charging for higher-priced services than those actually provided. Dr. Vargo’s criminal charges were dismissed by federal prosecutors without a trial.