Surgeon in fraud probe files suit over ban

Dr. Mark Kabins, the spine surgeon convicted in the federal investigation into fraud within the legal and medical professions, has filed a lawsuit to overturn a five-year ban preventing him from getting paid to treat federally insured patients.

He is suing Kathleen Sebelius, secretary of the U.S. Department of Health and Human Services. Kabins, who is no longer on federal probation, contends the ban violated his constitutional rights and is destroying his medical livelihood.

"Because of this unlawful exclusion, Dr. Kabins has lost a significant number of his medical patients, has difficulty obtaining employment in the medical profession and has incurred significant financial and reputational harm," his lawyer, David Chesnoff, wrote.

The ban has made it "extremely difficult, if not impossible" for Kabins to perform surgery on patients because there is no "viable party" to compensate Kabins if the federal Medicare and Medicaid programs refuse to pay him, Chesnoff said

"Additionally," Chesnoff added, "most hospitals in which he has performed his surgical services, as well as nongovernmental commercial insurance plans, will not allow him to furnish services because of his status as an excluded person."

Chesnoff said Sebelius wrongly concluded that his client's conviction fell under the federal insurance prohibition.

Kabins pleaded guilty in the lawyer-doctor investigation to one count of misprision of felony, not reporting a crime committed by others. He admitted he failed to disclose a secret agreement between former malpractice medical consultant Howard Awand and Noel Gage, the attorney for Melodie Simon, a former Kabins patient. Gage agreed not to sue two surgeons, including Kabins, who operated on Simon, who became a paraplegic.

The conviction had nothing to do with the quality of health care Kabins provided Simon, and Kabins is in good standing with the American Medical Association, Chesnoff said.

At the request of Chesnoff, a federal judge in September ended Kabins' five-year probation after 19 months, in part because of testimony from Simon, who praised the care she received from Kabins.

Prosecutors had filed court papers urging that Kabins remain on probation. But the judge concluded the government claims were "not convincing or supported by evidence."