As the crescendo of a seven-year alleged health care fraud investigation, the trial in the Eastern District of Pennsylvania opened in late April 2024. The trial is one of less than two percent of the federal criminal cases filed that ultimately end up in a jury trial. This flawed prosecution targeted an exemplary physician who, like the majority of physicians in the United States, has spent most of their lives in the service of the American people.
“Good morning, ladies and gentlemen of the jury. My name is Joan E. Burnes, and I represent the United States of America.”
The Assistant United States Attorney’s (AUSA) opening statement echoed in the dystopic courtroom in Reading, Pennsylvania:
“Defendant Physician Rifai stole from the government.”
These statements are a career-ending pronouncement for any physician. I do not want to keep the readers in suspense, but in the case of the United States of America v. Muhamad Aly Rifai, the trial was filled with despair, anguish, tearfulness, and literal crying. However, those were the postures and feelings of the government prosecutor, government witnesses, government experts, and federal agents. For a government-hired expert to burst out crying on the stand while being cross-examined by the defense attorney—indicating that their integrity does not allow them to support a case brought by the government of the United States—demonstrates the flawed justice system in this republic. It took a jury of twelve courageous Pennsylvanians less than four hours to come back with a “not guilty” verdict on all charges.
More egregious than my experience is the case of the United States of America v. Dr. Rajendra Bothra and his colleagues. The government kept Dr. Bothra imprisoned unjustly for three and a half years and alleged, without any credible evidence, a massive health care fraud loss of more than $450 million. The case presented by an overzealous and uninformed prosecution team from the United States Attorney’s Office of the Eastern District of Michigan collapsed at trial under its massive wrongful weight. The jury of twelve lay Michiganders quickly returned a “not guilty” verdict on all charges—more than 50 of them. A logical layperson in these United States of America may only wonder how the Department of Justice can prosecute a group of physicians, claiming they provided $450 million of fraudulent services, and come out empty-handed at trial despite more than 50 criminal charges. “Bupkis” is how a lay juror described the evidence presented by the government, indicating the jury did not believe the case presented by the United States Department of Justice against physicians.
These cases are similar to the majority of cases brought against physicians in the United States for health care fraud. Nonetheless, the government is able to obtain convictions against some physicians who are not able to mount an appropriate defense to these overzealous, uninformed, and devoid-of-fact prosecutions. The government has not kept its promise not to interfere in the practice of medicine as codified by federal law. In 42 U.S.C. §1395, “Prohibition Against Any Federal Interference,” the law indicates:
Nothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.
Nonetheless, Supreme Court Justice Neil Gorsuch observed in 2019, “Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.” The civil liberties lawyer Harvey Silverglate has suggested that “the average busy professional in this country” may unwittingly commit “several federal crimes” every day. Imagine the theoretical scenario envisioned by the health care fraud division of the Department of Justice ensnaring an independent physician in private practice in Middletown, America, who is struggling with declining reimbursement, overburdening regulations, a staffing crisis, and significant burnout after the COVID-19 pandemic. The overburdened, overworked, and underpaid physician overlooks the fire extinguisher in his office with an expired inspection tag for more than 30 days. By federal regulations, when the physician signed an agreement to be a part of the Medicare system (form 855), it indicates that the physician will comply with all federal, state, and local rules and regulations. An expired inspection of a fire extinguisher violates federal, state, and local rules and subsequently violates the agreement terms with Medicare.
An overzealous prosecutor will use the expired fire extinguisher as a violation of the terms of Medicare participation by the physician. Every service provided to a Medicare or Medicaid beneficiary by the physician and his practice and submitted for reimbursement is a fraudulent service under the health care fraud regulations (18 U.S.C. §1347). For each service provided while the fire extinguisher has an expired inspection tag, the physician could spend ten years in federal prison. If you don’t believe this scenario, please view records of presentations by Department of Justice attorneys promising to employ and charge stack to ensnare and imprison physicians. Overzealous prosecutors seeking to pad their careers, without regard for justice, can charge a physician not with health care fraud only but can bring charges for wire fraud, mail fraud, and money laundering. All these charges stem from the proceeds of clinical care provided by exemplary physicians who are targeted due to their minority status and being perceived as easy targets who will not resist unjust prosecutions. Supreme Court Justice Robert Jackson indicated almost seventy years ago that “prosecutors can easily succumb to the temptation of first ‘picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.’”
The United States Department of Justice is relentless in its effort to unjustly prosecute physicians. In 1996, a cataclysmic and unfortunate set of laws and regulations afflicted the medical community of physicians. This was none other than the 1996 Health Information Portability and Accountability Act (HIPAA). Buried in the bowels of the HIPAA regulation text was a rotten compilation of laws, including the health care fraud regulations (18 U.S.C. §1347). Since then, the prosecution of physicians has continued unabated to the tune of several hundred per year. The sole purpose of these prosecutions is to create seizures and restitutions that would fund investigative agencies such as the Department of Health and Human Services Office of the Inspector General.
The prosecution of Dr. Richard Paulus was the epitome of injustice and demonstrates the imperfection in the concepts of righteousness promoted by the United States Department of Justice in this republic. This prosecution persisted for more than a decade, during which prosecutors with the stench of mendacity buried evidence exonerating Dr. Richard Paulus, with whom they disagreed on the percentage of coronary artery stenosis and stent placement. Prosecutors presented a small fraction of his cases as evidence of health care fraud (close to 70 cases) while hiding that these cases were only a small fraction of a larger sample of close to 1,100 cases where he performed admirably and conscientiously. After imprisoning Dr. Paulus needlessly for close to a year and two jury trials, the United States Department of Justice raised the white flag and agreed to dismiss all charges against Dr. Paulus in 2024.
Physicians who are on the receiving end of unfounded and often fabricated accusations and allegations by the Justice Department should strive for experienced legal representation by a criminal defense attorney specializing in health care. It is the effect of juries that is needed as a check on prosecutorial power. “The Framers really believed in juries,” Supreme Court Justice Neil Gorsuch noted in an interview with New York Times columnist David French. “I mean, there it is in Article III. There it is in the Sixth Amendment. There it is in the Seventh Amendment. They really believed in juries, and we’ve lost that.” As a result of such pressure, Gorsuch notes, about 97 percent of federal felony convictions and 94 percent of state felony convictions are based on plea agreements. Trial by jury, which the Framers viewed as an essential bulwark against tyranny, plays only a marginal role in our current criminal justice system. Physicians, in the current environment, are more likely to be viewed positively by juries in health care fraud trials.
Muhamad Aly Rifai is a practicing internist and psychiatrist in the Greater Lehigh Valley, Pennsylvania. He is the CEO, chief psychiatrist and internist of Blue Mountain Psychiatry. He holds the Lehigh Valley Endowed Chair of Addiction Medicine. Dr. Rifai is board-certified in internal medicine, psychiatry, addiction medicine, and psychosomatic medicine. He is a fellow of the American College of Physicians, the Academy of Psychosomatic Medicine, and the American Psychiatric Association. He is the former president of the Lehigh Valley Psychiatric Society.
He can be reached on LinkedIn, Facebook, X @muhamadalyrifai, YouTube, and his website. You can also read his Wikipedia entry and publications.
