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4th Circuit affirms Salisbury doctor’s convictions

A federal appeals court has upheld the convictions of a Salisbury cardiologist who implanted unnecessary heart stents in more than 100 patients at Peninsula Regional Medical Center in Salisbury.

A three-judge panel of the 4th U.S. Circuit Court of Appeals on Tuesday unanimously rejected John McLean’s claim that the evidence was insufficient to convict him on six counts of health-care fraud.

“Although proof of a physician’s failure to meet medical standards, by itself, could not sustain a conviction for the federal offense of health-care fraud, we find that here the evidence supports the jury’s verdict,” Judge Roger L. Gregory wrote for the court.

McLean also argued that the federal health-care fraud statute, 18 USC §1347, was unconstitutionally vague as applied, “because no clear standard of medical necessity governed the use of coronary artery stents during the relevant time period,” Gregory wrote.

The court rejected that argument.

The statute “prohibited McLean from knowingly and willfully defrauding insurers by falsely certifying that the stents he placed in arteries with little to no blockage were reasonable and medically necessary in order to obtain reimbursement,” Gregory wrote. “Although the statute does not enumerate every possible fraud scheme, an average person would understand that this kind of conduct is prohibited.”

Prosecutors said McLean implanted stents in patients who had relatively healthy arteries and didn’t need the procedure and that he overstated the degree of blockages by a wide margin in order to justify the procedures.

McLean was sentenced to eight years and one month in prison after his November 2011 trial.

Medicare and other insurers were billed nearly $580,000 for the stents. McLean was ordered to pay that money back.

He also challenged his prison term, which was based not only on the amounts the insurers were billed, but also on the $1.3 million the hospital reimbursed the federal government.

“We are not persuaded,” Gregory wrote. “Neither the follow-up tests nor the hospital’s losses would have occurred but for the medically unnecessary stents McLean performed; as such, they were properly included as losses from relevant conduct.”

The U.S. Sentencing Guidelines permit sentencing courts to consider “all harm that resulted from the acts and omissions” of the defendant,” the court noted.

The case is U.S. v. McLean, US4th No. 11-5130.

The Associated Press contributed to this article.