Surgeon avoids prison time in deal

Las Vegas spine surgeon Mark Kabins pleaded guilty to a felony Monday after federal prosecutors offered him a deal that allows him to avoid prison time.

If Senior U.S. District Judge Justin Quackenbush approves the agreement, the surgeon's plea will mark the first conviction in a 2007 fraud case involving allegations that a network of Las Vegas doctors and lawyers cheated clients out of honest services by protecting doctors from malpractice lawsuits and sharing kickbacks from legal settlements.

Kabins became a defendant in the case in March, when he was charged with conspiracy and fraud. On Monday, Quackenbush said the surgeon's plea bargain appeared "fair and equitable."

"It would not appear to me to be likely that this case would be delayed by reason of a rejection of the Kabins plea agreement," the judge said.

Kabins, 49, pleaded guilty to "misprision of felony," which Quackenbush defined as "a failure to report an alleged crime committed by others." The deal calls for the defendant to receive five years of probation with six months of home detention. The judge has not yet set the conditions for Kabins' home detention.

The deal also requires him to pay $3.5 million to a former patient who became a paraplegic after he and his partner operated on her in 2000.

"He doesn't go to prison, which is a scary thing for anybody," Kabins' defense attorney David Chesnoff said. "He also is not acknowledging any fraud on his part or malpractice. He's also not cooperating with the government."

The former patient, 51-year-old Melodie Simon, said she was shocked by Kabins' plea agreement.

"It makes my whole idea of doctors go skewed," she said during a brief telephone interview. "I don't know what else to say."

Kabins declined to comment after the plea hearing, and his lawyers would not say whether he planned to testify at the trial of his two co-defendants, personal injury attorney Noel Gage and medical consultant Howard Awand. The trial is scheduled to begin Feb. 8.

Gage, who attended the hearing, said he expects Kabins to testify. When asked whether the plea agreement would hurt his case, Gage replied, "Nothing can hurt my case, because there was no crime committed, and I've asserted that from the beginning."

Los Angeles attorney Harland Braun, who represents Awand, also attended the hearing. He said the proceedings left him with the impression that an innocent man was afraid to go to trial.

The plea agreement includes more than two pages of facts that support Kabins' guilty plea. In signing the document, Kabins admitted that all of the facts "are true and correct."

"In this plea agreement, Dr. Kabins acknowledged that he used Awand to corruptly influence Gage not to sue him, and that he concealed the crime that Awand and Gage thereafter committed," U.S. Attorney Daniel Bogden said in a written statement.

According to the plea agreement, Kabins and partner John Thalgott performed spine surgery on Simon on Aug. 3, 2000. Simon began experiencing complications, and Kabins operated on her again on Aug. 9, 2000.

Simon ultimately was rendered a paraplegic, according to the plea agreement, and Kabins believed she could bring a viable lawsuit against him. Simon eventually retained Gage to represent her.

According to the plea agreement, Kabins received patient referrals from Awand and knew that Awand in turn referred cases from him and other doctors to certain personal injury lawyers.

"Dr. Kabins asked Awand to intercede with Gage in order to persuade Gage not to sue him and Dr. Thalgott in connection with their treatment of Ms. Simon," the document states. "Dr. Kabins believed Awand would seek to influence Gage by referring personal injury cases to him."

Rather than sue Kabins or Thalgott, Gage sued an anesthesiologist.

"Dr. Kabins understood that Awand had referred personal injury cases to Gage and believed that the referrals influenced Gage's decision not to sue him and Dr. Thalgott," according to the plea agreement. "Dr. Kabins believed that the foregoing created a conflict of interest for Gage, and Gage concealed this conflict of interest from Ms. Simon."

Kabins drafted a "letter of complaint" to help Gage sue other health care providers who were involved in Simon's treatment, and Kabins intentionally omitted "material information" from the letter, according to the plea agreement. Kabins then caused Awand to mail or fax the letter from Colorado to Gage in Nevada.

"Kabins admits that he knew about the crime of mail or wire fraud committed by Awand and Gage, that he concealed material information about the crime, and that he did not as soon as possible make known the crime to a judge or other person in civil or military authority," the plea agreement states.

Gage settled Simon's malpractice case for $2.3 million. After attorney fees and costs were deducted, Simon received $1.3 million.

Prosecutors granted Thalgott immunity in exchange for his testimony in the fraud case. Thalgott voluntarily paid Simon $1.5 million in restitution.

On Monday, Simon said she would use the money from Kabins to pay for her ongoing medical expenses.

The Cheyenne High School teacher and volleyball coach still resists being called a "victim."

"It defeats what I stand for," she said. "I'm not going to be a victim."

Kabins also agreed, as part of his plea deal, to perform 250 hours of community service. Quackenbush, who is based in Spokane, Wash., scheduled the defendant's sentencing hearing for Jan. 15.

Braun said the plea agreement does not establish any corruption; it merely showed that Kabins feared a lawsuit.

"It's up to Gage to make an independent decision who he sues, and he did," Braun said.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710.