A Monroe doctor accused of illegally distributing pain medication and committing health care fraud last week was found not guilty of all charges against him in federal court in Detroit.
Dr. Lesly Pompy, a pain management specialist, “was elated, his face streaming with tears as each count of the verdict was read by the (jury) foreperson,” one of Pompy’s attorneys, Ronald Chapman II, wrote in a post at federaldefenseblog.com.
The jury deliberated for two and a half days, then took a long break for Christmas and New Year’s before returning to give its verdict.
The verdict on Jan. 4 ended a monthlong trial in U.S. District Court in Detroit. It was the culmination of a case that began in 2015 when police began investigating Pompy. On Sept. 26, 2016, members of the Monroe Area Narcotics Team and Investigative Services (MANTIS) raided Pompy’s office inside ProMedica Monroe Regional Hospital. Police said the case involved the distribution of at least 1.2 million narcotic pills, including Norco and oxycodone, in a single year.
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Monroe authorities turned the case over to federal prosecutors, and in June 2018 a grand jury issued a 37-count indictment against Pompy, accusing him of unlawfully distributing “more than 4,221,892 dosage units of Schedule II controlled substances and over 6,196,642 total dosage units of all controlled substances outside the course of professional medical practice” between 2012 and 2016, a news release issued at the time by the U.S. Attorney’s Office for the Eastern District of Michigan said. Pompy also was accused of submitting claims to Medicare, Medicaid and Blue Cross Blue Shield totaling approximately $16,856,683 for services the government claimed were not medically necessary or that Pompy never rendered.
The case endured delays due to the COVID-19 pandemic and the death of the original judge, Arthur J. Tarnow, Chapman said. The case proceeded before District Judge Gershwin A. Drain.
“At trial, the Government sought to prove that Dr. Pompy knowingly prescribed controlled substances including Hydrocodone, Oxycodone, Morphine, Oxycontin, and Subsys to his patients,” Chapman wrote. “The Government selected several patients as examples of what it thought was unlawful prescribing. As the trial progressed, it became clear that each of the patients suffered debilitating injuries and the Government’s issue was not that he prescribed but that he should have recognized ‘red flags’ of unlawful drug diversion.”
The health care fraud part of the case involved the “impossible day” legal theory, in that prosecutors sought to prove that Pompy was billing for more patients than he could have seen in a day, Chapman wrote.
“However, as Sean Weiss, an expert biller and coder from Doctors Management explained to the jury, evaluation and management codes are not based on time – they are based on complexity and Dr. Pompy saw some of the most complex patients,” Chapman wrote. Weiss was one of the defense’s witnesses.
“Ultimately, before the jury would get the case the Government dismissed several health care fraud counts and a ‘maintaining a drug involved premises’ count indicating that even they believed they did not meet their burden at trial,” Chapman wrote.
“The defense was aided by the fact that Dr. Pompy was always a caring and compassionate physician,” Chapman said in his blog post. “His patients loved him and most of his employees loved him too. One patient openly professed his love for Dr. Pompy while on the witness stand, another government witnessed mouthed ‘I love you’ as she left the stand.”
The highlight of the testimony that aided the defense’s case, Chapman wrote, was the testimony of Diana Knight, a long-time patient of Pompy’s practice and also the practice’s biller.
“Despite being called by the Government to testify she openly told the jury and prosecutors that she was not on their side and that Dr. Pompy was a good man and a good doctor who loved his patients,” Chapman wrote. “She was shocked to find out that her treatment was the basis of two of the charges was her treatment — a fact that prosecutors failed to inform her of during her lengthly pre-trial preparation sessions.”
“The defense was also aided by the fact that Dr. Pompy’s patients all had objectively verified pain issues,” Chapman wrote. “Dr. Pompy performed a lot of tests such as MRIs, CT scans, blood work, and urinalysis tests to determine underlying pain conditions.”
A recent Supreme Court ruling that changed the standard for proving that a doctor “knowingly” prescribed an unauthorized prescription showed that the prosecution’s argument that Pompy ignored “red flags” amounted to a mere difference of medical opinion between Pompy and the government’s expert witness, Chapman wrote.
Chapman also credited the trial preparation of the “three entities gathered together to prepare the case, Chapman Law Group, Chapman Consulting Group and the talented counsel at Butzel Long.”
“All members of the defense team including the talented health care fraud investigators at Chapman Consulting Group banded together to create a picture of a compassionate physician who was doing the best with what he had,” Chapman wrote.
The original investigation by MANTIS involved a Blue Cross Blue Shield investigator working undercover to attempt to receive pain medications, Chapman wrote. “The undercover was armed with a fake referral from a local physician and complained of moderate pain in his lower back which he claimed was from a career as a driver.”
“After several visits Dr. Pompy elected to prescribe a low dose of Norco to the undercover agent despite urinalysis tests showing that the agent’s urine was negative for the controlled substance,” Chapman wrote. “Shortly after cessation of the undercover operation, MANTIS, the DEA and local authorities conducted a raid of the practice flooding dozens of armed officers and agents into the practice and interrogating patients and employees.”
