For Dr. Mark Kabins, closure does come at a cost

I arrived early at the Lloyd George U.S. Courthouse on Monday to beat the crowd.

When Dr. Mark Kabins entered federal court on March 11 to protest his innocence, he was surrounded by a sprawling gathering of friends, family and professional well-wishers. The gifted surgeon clearly wanted to send a message that not only was he innocent of depriving former patient Melodie Simon of his honest services, but he also was telling the world he would stand and fight.

On Monday, when he meekly pleaded guilty to misprision of a felony, you could have fit Kabins' support team in a couple of minivans. There were almost as many attorneys in the courtroom as fans of the fallen physician, who agreed before Senior U.S. District Judge Justin Quackenbush that he committed the crime of knowingly observing felony activity in the Simon case but did nothing about it. If the judge accepts the plea under the current terms, Kabins will receive a felony record, six months of home confinement and five years of probation and will pay $3.5 million in restitution to Simon, who was paralyzed after spinal surgery. The little-used charge carries a possible prison sentence of up to three years.

The wealthy Kabins won't need surgery or even a SpongeBob Band-Aid for the wrist slap he receives, and it remains unclear whether his plea deal will secure the government's case against attorney Noel Gage and medical consultant Howard Awand. But it was clear from his plea that Kabins no longer wanted to joust with the government.

My favorite part came when the doctor's lead counsel, David Chesnoff, scolded me for misstating Kabins' status. I'd been told Kabins was planning to cooperate.

Chesnoff is right, and I was wrong. In the end, Kabins cut a deal without agreeing to cooperate with authorities. He only agreed to a set of incriminating facts.

The question is: Why?

After rejecting what sources say was an offer of a misdemeanor and no fine, Kabins paid full fare in a case in which colleague surgeons Benjamin Venger and John Thalgott reached negotiated settlements and received no felony convictions in exchange for future testimony. By accepting the misprision of a felony deal, Kabins is admitting he witnessed felony behavior and did nothing about it.

I suppose he'll be able to expound on the nuances of misprision -- namely, that he didn't admit he participated in the felonies he witnessed. Then maybe he can explain the part about how he paid $3.5 million in restitution to Simon out of the goodness of his heart years after the crippling surgery.

Give Kabins credit for consistency. Twice, given the chance to do the right thing, he declined. Considering the depth of unprofessional behavior that has surfaced in this malodorous investigation, I should have known his decision would be based on self-preservation.

Chesnoff reminded me that his client, at 49, is a talented surgeon who has "helped thousands of people." But a defendant -- even one with four attorneys -- takes a chance when he enters a courtroom. Kabins decided he didn't want to take that chance.

"He wanted closure," Chesnoff said. "Hopefully, this will give him closure."

At no time during Monday's hearing was the word "malpractice" mentioned. Kabins could conceivably receive a second wrist slap by the state Medical Board of Medical Examiners, but who am I kidding? The medical board has a long tradition of coddling the ethically bankrupt.

If Kabins' attorneys are wise, they will move to voluntarily put the doctor's medical license on ice for the time he's on home confinement.

In the end, Kabins paid a big price for waiting to settle his case. Next up, Gage and Awand.

But we do know $3.5 million and a felony no one's heard of can buy closure for some consciences.

John L. Smith's column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at Smith@reviewjournal.com or call (702) 383-0295. He also blogs at lvrj.com/blogs/smith.