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Jury Verdict for Prosecution Underscores Difficulty of Overcoming Anti-Kickback Statute Charges at Trial

On March 19, 2015, a federal jury convicted three former executives of Chicago’s Sacred Heart Hospital on violations of the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(1) & (2) (AKS).  The government filed the criminal complaint on April 15, 2013, charging Edward Novak, former chief executive officer; Clarence Nagelvoort, former chief operating officer; and former chief financial officer Roy Payawal with conspiring to pay or receive kickbacks for referring Medicare and Medicaid patients to Sacred Heart Hospital.  It is rare for a case of this nature to advance to a jury verdict, which makes this case noteworthy.  In fact, of the 10 individuals charged as a result of the federal investigation, seven chose to cooperate with the government rather than risk a trial.

The government’s investigation initially focused on the medical necessity of procedures performed on patients.  During that investigation, the government uncovered the details of the alleged kickback scheme.

According to the testimony of former employees, defendants Novak and Payawal implemented a scheme to offer and pay kickbacks to physicians in return for patient referrals, hiding the referral payments in a number of ways such as sub-leasing space from physicians without ever using the space.

In addition to fictitious rentals, prosecutors also claimed that defendants made payments under medical directorship contracts without requiring that the physicians provide any services under the contract, and paid physicians for supervision and training of non-existent medical students.  Prosecutors pointed to spreadsheets, maintained by the CFO, which tracked patient referrals to the hospital, to support their theory of the case.

The defense pointed out that it was not improper for a hospital to develop policies to help generate business.  Its trial strategy centered on shifting the blame for the illegal arrangements to the government’s star witnesses, Anthony Puorro, the hospital’s former chief operating officer, and Noemi Velgara, a former vice president.  The defense attempted to use admissions made in connection with Puorro and Velgara’s guilty pleas to cast them as rogue employees who were the real masterminds behind the kickback scheme.  The jury, however, after evaluating evidence which included emails, testimony from physicians who allegedly benefited from the scheme and secret recordings, soundly rejected this proposition.

The verdict for the prosecution sends the message to potential litigants that overcoming the specter of fraud in an AKS jury trial can be a particularly treacherous uphill climb.  Ultimately, Edward Novak was convicted of all but one of the 28 counts against him, Clarence Nagelvoort, on 11 of 12 counts, and Roy Payawal, on 17 of 27 counts.  Each count carries a maximum penalty of five years in prison.

© 2019 McDermott Will & Emery

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About this Author

Partner

David O. Crump is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington D.C. office. He is a member of the Trial Practice Group.  David focuses his practice on complex litigation, including class actions, product liability and multi-party mass tort and toxic tort cases.

David has significant experience handling general commercial disputes through mediation, arbitration, trials and appeals.  He helped secure a complete dismissal of a plaintiff’s claims against a private water purveyor in a suit alleging...

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