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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

August 16, 2002

BY FEDERAL EXPRESS

Louis DeFalaise
Senior Counsel to the Director
Executive Office for United States Attorneys
Office of the Director
Main Justice Building, Room 2244A
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

Dear Mr. DeFalaise:

By letter dated January 22nd, we criticized the targeting of Medicaid physicians by the Department of Justice (DOJ), and identified five (5) specific examples of abusive prosecutions, plus a sixth that drove the doctor to suicide. By letter dated June 12th, you brushed off our central complaint and then misstated the facts of our first case.

You said that the DOJ is not targeting any particular fields, and is being fair in enforcing the law. But the data demonstrate otherwise. Assistant U.S. Attorneys are systematically destroying and eliminating doctors who provide medical care to the poor through the Medicaid program. These prosecutions do unfairly destroy Medicaid doctors, causing a disparate impact on the minorities they serve. Only a small percentage of doctors accept Medicaid, yet all five out of five (100%) of our examples of prosecuted doctors were in the Medicaid program. Many blacks and other minorities are being deprived of competent Medicare by these unjustified prosecutions.

A callous "win/win" for DOJ and state Medicaid departments is causing this. Assistant U.S. Attorneys find it easier to convict a hardworking physician than a dangerous terrorist or drug kingpin. State Medicaid officials are more than willing to eliminate Medicaid doctors, as it reduces state outlays. In Springfield, Illinois, the assistant U.S. Attorney systematically orchestrates misleading testimony by state health officials to convict Medicaid physicians who care for blacks and underserved populations.

For example, our January letter emphasized the abusive prosecution in United States v. Mitrione (C.D. Ill.). You responded with a completely erroneous statement about the case: "In Dr. Mitrione's case the various issues you raised were considered and rejected by the District Court and Court of Appeals." That is completely false. Did the prosecutor mislead you also?

Although the Mitrione trial occurred nearly one year ago, the case is still far from any hearing before the Court of Appeals. DOJ's unwillingness to clean its own house forced district court judge Jeanne E. Scott to hold lengthy hearings to investigate prosecutorial misconduct in the case. On July 8th, she began a hearing focusing on an improper government audit of Dr. Mitrione's practice, which was used to mislead the jury into convicting him. Judge Scott then spent nearly an entire week hearing extensive testimony about government misrepresentation of the doctor's practice. The government-prepared audit was so riddled with falsehoods that it made Enron look like a model of virtue.

Is there no oversight of assistant U.S. Attorneys? We attended a portion of these hearings, as did the local newspaper reporter, but supervisors at DOJ appear to remain in the dark about it. The testimony demonstrated rampant misconduct by the government in the case, including apparently perjured testimony. We have copies of the transcripts. At the end the judge denied a request by the assistant U.S. Attorney to strike the allegation of proffered perjury, and gave him until August 23rd to make amends for what happened. Yet DOJ appears uninterested in its own misconduct.

The unfair prosecution of Dr. Mitrione is typical, as demonstrated by our Jan. 22nd letter. Evidently it is easier for DOJ to go after physicians serving the impoverished, as he was, then to prosecute real criminals. Time and time again, we see honest doctors raided, intimidated, and destroyed based on false allegations by disgruntled employees, competitors or ex-spouses. In every case, many of which were detailed in our original letter, DOJ insists on a guilty plea long after the allegations have been disproven.

Sometimes courts rely on the integrity of the DOJ in affirming unjustified convictions. It is no answer to an improper prosecution to say that the court went along with it. Only rarely will courts be able to detect and act upon prosecutorial misconduct. The Attorney General, not the court system, is accountable for supervising and disciplining attorneys working under his direction. Surely we can agree about that.

Your letter notably omitted any response to our information that DOJ circulated a video encouraging its attorneys to target physicians and others for medical billing ambiguities. A simple survey of prosecutions shows a systematic targeting of doctors who serve the poor through the Medicaid program, with the result that minorities are disproportionately deprived of their doctors. One of the doctors named in our letter, Dr. George Krizek, served one of the most blighted areas of the country in the District of Columbia. Is the high rate of prosecutions of these doctors pure coincidence? Not a chance. It reflects an overall pattern of reducing government reimbursements by unfairly destroying doctors who serve Medicaid patients.

When minorities can no longer attain quality medical care due to abusive prosecutions in Central Illinois, Tampa and elsewhere, will the DOJ find replacements? Plainly not. So kindly tell us if Attorney General Ashcroft will exercise any oversight over these unjustified and catastrophic prosecutions.

We expect to obtain an informed response this time, based on actual prosecutorial patterns by Assistant U.S. Attorneys (particularly Central Illinois and Tampa, Florida), including the specific cases we outlined.

Sincerely yours,

Jane M. Orient, M.D.
Executive Director