Surgeon ‘very happy’ with language in order ending probation

Las Vegas spine surgeon Mark Kabins won't suffer the indignities and annoyances of being on probation any longer, courtesy of Senior U.S. District Judge Justin Quackenbush.

"Of substantial import is that the alleged victim under the Government's prosecution theories, Melodie Simon, a college educated teacher and coach, has strongly endorsed the termination of Dr. Kabins' probation," Quackenbush wrote Sept. 6, ending Kabins' probation after the doctor served 19 months of his five-year probation.

The judge said he was satisfied the federal prosecutors' allegations that Kabins "violated his probation by somehow breaching a bar imposed by the United States Department of Health and Human Services concerning the provision of health care services is not convincing or supported by evidence."

Quackenbush said the crime and guilty plea by Kabins "were not based upon any health care violations by Dr. Kabins."

Kabins' crime of misprision of a felony was based on his failure to report a secret agreement Simon's attorney Noel Gage struck with medical consultant Howard Awand. Gage agreed not to sue Dr. John Thalgott, the first doctor who operated on Simon, or his one-time partner Kabins, who also operated on Simon, who became a paraplegic. Thalgott and Kabins agreed to shift the blame to the anesthesiologist, part of the effort to save their own skins from a malpractice lawsuit.

Simon, now retired from coaching and teaching at Cheyenne High School, has been paid a total of $7 million in settlements negotiated by federal prosecutors, including $3.5 million from Kabins. Although initially furious with Kabins upon reading his plea bargain admissions, she has returned to his care and is convinced he did nothing wrong.

Kabins' attorney, David Chesnoff, said the probation termination is the first step in the doctor's effort to lift a five-year federal ban blocking Kabins from getting paid for treating any federally insured patients. After he pleaded guilty in January 2010, the Department of Health and Human Services said he could no longer receive government payment from any federally insured patient, including Medicare, Medicaid and military patients.

Kabins is allowed to practice, but he has hospital privileges only at North Vista Hospital in North Las Vegas.

The CEO there, Rick Kilburn, repeatedly has ignored my requests for interviews about allegations by prosecutors Steve Myhre and Dan Schiess that "on more than one occasion, Kabins has been present in the operating room for patients who were beneficiaries of federal health programs, assisting others with surgeries." By allowing that, the hospital could have exposed itself to federal penalties, prosecutors wrote.

Chesnoff said Kabins is "very happy with the language in the order, which goes to the heart of the issue -- that his offense had nothing to do with his medical care. He's grateful he's off probation."

When the surgeon pleaded guilty to concealing knowledge of a felony, there was no admission of malpractice. Kabins admitted Simon could have filed a viable lawsuit against him, and he admitted he approached consultant Howard Awand and asked him to persuade Simon's attorney, Gage, not to sue him.

Gage, who pleaded no contest to obstruction of justice, also asked Quackenbush to terminate his probation but was denied.

Awand pleaded guilty to misprision of a felony and received a four-month prison sentence from Quackenbush In a separate $2.5 million tax evasion case, he received a four-year sentence from U.S. District Judge Kent Dawson.

The investigation that began with scores of potential defendants has resulted in three felony plea bargains -- Kabins, Gage and Awand.

The statute of limitations expires soon, so if nothing happens between then and now, the other people named in search warrants can rest easier.

Prosecutors have tried to get Awand to testify before a federal grand jury, but as Las Vegas Review-Journal reporter Jeff German reports, Awand's not talking.

Awand is following the code of omerta in an investigation dubbed the Medical Mafia.

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