The U.S. Attorney’s Office for the District of Massachusetts announced on August 18, 2020 that a Missouri surgeon and Kansas medical device distributor have been charged and agreed to plead guilty to conspiring to pay and receive kickbacks aimed at inducing the use of spinal implants sold by a medical device company as well as engaging in conduct aimed at obstructing the government’s investigation into the kickback scheme.
The surgeon agreed to plead guilty to one count of conspiracy to violate the Anti-Kickback statute and one count of obstruction for which the government will recommend a sentence at the low end of the sentencing guidelines, one year of supervised release, and a fine and forfeiture of $379,000, which is the amount that he received in sham consulting fees from the medical device company.
The distributor agreed to plead guilty to one count of conspiracy to violate the Anti-Kickback statute and one count of witness tampering for which the government will recommend a sentence at the low end of the sentencing guidelines, one year of supervised release, and forfeiture of $1,264,501, which is the amount that he received in commissions from the medical device company for products the surgeon used in his spine surgeries.
The Alleged Underlying Facts
According to the government, between late 2012 and October 2015, the two defendants and their co-conspirators engaged in a scheme in which the medical device company and its CEO and CFO paid the surgeon a total of $379,000 pursuant to a sham consulting program that paid him $500 to $750 per hour for supposedly performing consulting services. Although the medical device company’s physician-consulting program was purportedly directed at gathering technical feedback about its products from surgeons, the company and its CEO and CFO allegedly used the program, and the kickbacks they paid pursuant to that program, to induce and reward surgeon decision to use the company’s products.
The medical device company allegedly agreed to pay the distributor a 25% commission on all of the medical device company’s products that the surgeon used in his spine surgeries. Over the period of the time covered by the conspiracy, the medical device company allegedly paid the distributor over $1.2 million in commissions for spine products the surgeon used. The government alleged that during the conspiracy, the surgeon and distributor represented that the surgeon had spent hundreds of hours evaluating products, discussing industry trends and educating medical residents. In fact, according to the government, the surgeon spent only a small fraction of his reported time performing actual consulting activities for the medical device company. In exchange for the consulting payments he received, the surgeon used over $4.5 million of the company’s products in his surgeries, often in the distributor’s presence or at his prompting, including excessive amounts of certain of the company’s products.
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