A three-day sentencing hearing for Dr. Salomon Melgen, 63, is scheduled to begin Tuesday on 67 counts, including health care fraud, submitting false claims and falsifying records in patients' files. U.S. District Judge Kenneth A. Marra could give Melgen a life sentence, but he has wide discretion. Melgen's attorneys want less than 10 years.
Assistant U.S. Attorney Roger Stefin argued in court documents that Melgen "was the highest-paid (Medicare) provider in the country for most, if not all, of those years" between 2008 and 2013. "The crimes committed by the defendant were truly horrific. The defendant not only defrauded the Medicare program of tens of millions of dollars, but he abused his patients — who were elderly, infirm, and often disabled — in the process," Stefin wrote. "These unnecessary procedures resulted in pain, discomfort, and, in some instances, endophthalmitis, a serious eye infection that can lead to vision loss and blindness.... These 'treatments' involved sticking needles in their eyes, burning their retinas with a laser, and injecting dyes into their bloodstream."
Melgen's attorneys say prosecutors are exaggerating Medicare's loss, and say some patients testified the Dominican-born, Harvard-trained doctor improved their sight. Kirk Ogrosky and Matthew Menchel argue in court documents that the proposed sentence is comparable to what terrorists get, which they say is "irrational on its face." Because of Melgen's age and poor health, any lengthy sentence would be equivalent to a life term, they say.
They say a sentence of 30 years or more would result in Melgen being housed in a maximum security prison, which they called "an unnecessary burden on the taxpayers," given his lack of criminal history. They want him sent to a minimum security camp, which they say would require a sentence of less than 10 years. Prosecutors dispute that, saying the federal Bureau of Prisons would decide his placement regardless of the sentence's length.
Ogrosky and Menchel have unsuccessfully argued that the judge should overturn the jury's guilty verdicts. They acknowledged during Melgen's trial that he made billing and treatment mistakes, but said they were unintentional, and therefore not a crime.
"Unlike most Medicare fraud cases, Dr. Melgen did the work — he evaluated the patients and treated them," the pair wrote. "When asked to repay money to Medicare, he did so. When he discovered mistaken billing, he refunded the claims."
Melgen has been in custody since his April 28 conviction. Separately, a federal jury in New Jersey hung last month after a 2 ½-month trial where prosecutors tried to prove Melgen's gifts to Menendez were actually bribes. In return, they say, Menendez obtained visas for Melgen's foreign mistresses, interceded with Medicare officials investigating his practice and pressured the State Department to intervene in a business dispute he had with the Dominican government. Menendez and Melgen have denied wrongdoing in that case. Prosecutors have not said whether they will retry them.
During Melgen's two-month Medicare fraud trial, prosecutors argued that while any doctor can make an occasional billing mistake, Melgen's errors were too numerous to be honest. For example, Melgen frequently billed Medicare for tests and treatment on both eyes, even though one was prosthetic. They are commonly called "glass eyes," although today most are made of acrylic.
Prosecutors also pointed to tests run that were supposed to take five minutes or more, yet were done in seconds. That made the tests unusable for diagnosis, but enabled Melgen to bill Medicare up to several hundred dollars each for as many as 100 patients a day.
He also pocketed millions more by splitting single-use vials of an expensive eye drug into four doses — there was enough extra medicine in each — and billing the government for each injection, they said. Melgen's attorneys argued that cost the government no extra money, as Medicare would have purchased four vials if he had followed the instructions.
Melgen became politically active in 1997, when he treated Florida Democratic Gov. Lawton Chiles, who appointed him to a state board. He was soon hosting Democratic fundraisers at his 6,500-square-foot (605-square-meter) North Palm Beach home, and he eventually became friends with Menendez. Melgen paid for trips he and the senator took to France and to the doctor's home at a Dominican resort.
Menendez reimbursed Melgen $58,500 after the trips became public knowledge.