Did federal prosecutors investigate Memphis pediatrician Dr. Rande Lazar and search his office to teach him a lesson about government power or to obtain documents?
In papers filed in the federal court, Lazar's attorneys claim that assistant U.S. attorney Kevin Whitmore told them he would get a search warrant for Lazar's office "to teach your client a lesson that I can get documents from him any time I want to. I could search his house if I want to."
The defense team says it's part of a pattern of a "loss of prosecutorial objectivity" and "misuse of executive power" in the three-year federal investigation of Lazar.
Lazar, a pediatrician specializing in ear, nose, and throat problems, was indicted in January on 115 counts of health-care fraud. He has since been the subject of two front-page stories in The Commercial Appeal recounting in detail his alleged misdeeds, his medical training in Mexico, his civic contributions, and his temporary loss of operating privileges at Methodist Hospital.
The government's indictment says Lazar performed unnecessary medical procedures on patients in the course of doing sinus surgery in order to defraud TennCare and other health-care benefit programs. As part of the alleged scheme, the government says Lazar's billings indicated he spent 15 to 30 minutes in face-to-face visits with patients when in fact Lazar often "was with a patient no more than 10 minutes." The government also says Lazar trained participants in a fellowship program to do the procedures and ordered them and his office staff to list him as the surgeon instead.
The case, which is expected to go to trial later this year, combines elements that could almost have been taken from hit television programs E.R. and The Practice. Lazar's former partner is Dr. Neal Beckford, president of the Memphis Medical Association. Their former office manager, Judy Luke, is expected to testify for the government against Lazar. Luke subsequently went to work for Beckford.
The pretrial motions have featured a bitter exchange of charges between prosecutors Whitmore and Cam Jones and former federal prosecutors Marc Garber, Dan Clancy, and Joe Whitley on the defense team. Clancy was a federal prosecutor in the West Tennessee district for several years. Garber worked as a federal prosecutor in Nevada and Florida, specializing in health-care fraud. Whitley left the defense team last year to become general counsel for the Department of Homeland Security at the request of President Bush.
Before taking his new job, Whitley wrote a long letter to Larry Laurenzi, assistant U.S. attorney in Memphis. That letter has been entered in the case file.
"I do not believe any aspect of this matter is criminal in nature," Whitley wrote.
He said Whitmore's threat suggested the prosecutor was using the search warrant for intimidation rather than the proper purpose of obtaining evidence. He wrote that he normally deals directly with the assistant prosecutor involved in the case but was approaching Laurenzi because "I can no longer in good conscience and as counsel for our client remain silent without asking you for your guidance."
In other documents filed this week, defense attorneys Garber and Steven Farese claim prosecutors have taken a "terrifying" view of the Fifth Amendment in a March 18th letter from Jones to Farese.
"I understand from our conversation yesterday that you now intend to assert a Fifth Amendment privilege as to these records," Jones wrote. "That statement indicates to me that the records are incriminating. Thus, any attempt to present those articles, notes, or outlines during trial will be opposed."
Farese and Garber argued in a motion filed this week that this is "another in a growing line of prosecutorial abuses" in the case.