In fraud case, anesthesiologist may be stronger witness than paraplegic

Every fraud case has to have a victim; otherwise it's not fraud.

In the case against Las Vegas attorney Noel Gage, Melodie Simon was the "victim" in the eyes of the government, even though she testified he didn't victimize her.

A paraplegic, she's once again identified as a victim in a related indictment against Dr. Mark Kabins, a local back surgeon.

But there's another victim named in the latest indictment, one who may be a stronger witness for federal prosecutors than Simon -- Dr. Dan Burkhead.

Burkhead is the anesthesiologist who worked on Simon with Kabins on Aug. 9, 2000, six days after her initial back surgery by Dr. John Thalgott.

Thalgott operated on her, then went on vacation, leaving Kabins to cover for him. Simon was paralyzed from the waist down after her second surgery.

The government alleged Kabins and Thalgott conspired with her attorney, Gage, and consultant Howard Awand to place all of the blame of her paralysis on the anesthesiologist. In exchange, the doctors wouldn't get sued, Thalgott testified in Gage's trial.

Thalgott admitted his role in the conspiracy, fingered Kabins as a co-conspirator and said Kabins committed malpractice by waiting so long to operate on Simon.

Basically, the government contends the two surgeons threw the anesthesiologist under the bus, blaming Simon's paralysis entirely on him and denying their own culpability, reducing by millions the amount Simon might receive from her malpractice lawsuit.

Kabins was expected to testify that Thalgott's version was wrong and there was no malpractice, but the government refused to give him immunity during the Gage trial.

A judge, contending he had the right to order prosecutors to grant immunity to Kabins, dismissed the charges against Gage and Awand.

The question of whether the judge overstepped his bounds is now pending in an appeals court and, if the government wins, the charges against Gage and Howard Awand will be revived. If not, that case goes kaput.

Burkhead was defrauded, according to the government, because all of the blame for Simon's paralysis was shoved on him, his insurer paid a $2 million malpractice settlement, and that drove up his malpractice insurance premiums.

While that's not nearly as dramatic as Simon's paralysis, Burkhead is likely to be a more forceful witness against Kabins than Simon was against Gage.

But Burkhead can expect a rough and tumble cross-examination from defense attorneys trying to lay the entire blame for Simon's paralysis on him.

Kabins pleaded not guilty to one count of conspiracy and seven counts of mail fraud and honest services fraud on March 11.

Photos and video of Kabins' first court appearance showed him surrounded by a mob of supporters. He actually looked kind of shrimpy as friends tried to protect him from having his picture taken by television cameraman Matt Adams and Review-Journal photographer John Locher.

"Nobody pushed or touched me, it was more toward the television guys," Locher explained. "But they were definitely trying to get in our way, so we couldn't get a clean shot."

KLAS-TV, Channel 8, reporter George Knapp said the crowd included a number of attorneys allegedly involved in the conspiracy of doctors and lawyers to drive up medical costs in personal injury cases.

"The lawyers were pretty cagey with us," Knapp wrote in an e-mail.

"They did not use their hands at all but they used their bodies to press up against us. At one point, there were four of them surrounding my photog and had him pinned against the concrete wall on the ramp. I think they were trying to provoke us because the whole time they were moving toward us and sort of muscling us where they wanted us to go, they were complaining how we were being aggressive and unprofessional and were stepping over the line."

I've heard Kabins rejected an offer from the government that he enter a pretrial diversion program, a sweet deal that would have meant the charges would have been dismissed after a period of probation. Presumably, in exchange, he would have testified against others.

He must feel confident that he'll prevail. But that confidence certainly didn't come across on TV or in the newspaper photos.

What was intended to look like a show of support made Dr. Kabins look like a scared rabbit.

Jane Ann Morrison's column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275. She also blogs at lvrj.com/blogs/morrison/.