Disclosed evidence in Paulus's favor derails trial

Oct. 26—A last-second disclosure of a review by a physician, who concluded a majority of Dr. Richard Paulus's procedures were medically necessary, has caused a delay in a second jury trial.

Paulus has been under federal indictment since 2015, alleging the once-prominent King's Daughters cardiologist falsified medical records to perform unnecessary procedures in an attempt to defraud insurance companies.

Nearly a decade later, a legal battle complicated by convictions, acquittals and appeals, a new trial was scheduled to convene in U.S. District Court on Monday in Covington.

After an emergency motion was filed by the defense to continue the trial due to this "new" disclosure, the trial has been delayed.

According to court records, prosecutors sent an email to defense attorneys with information about an audit that looked into 18 random samples of Paulus's procedures in which a reviewing physician concluded only one was determined to be "medically unnecessary."

The 2014 review, conducted by Aetna Special Investigations Unit, was part of a federal probe into Paulus beginning in 2011, but its minuscule findings were sent to the defense just five days before a new jury was scheduled to convene.

In the communication from a U.S. prosecutor, the defense was given slight details into Aetna's findings, as it was "arguably exculpatory," meaning the finding could be beneficial to the defense's case.

The defense alleged the prosecution attempted to "downplay" the findings and their possible impact in Paulus's defense as the prosecution reasoned the reviewing physician was not a cardiologist.

Paulus's attorneys say the reviewing physician found the large majority of sampled procedures to be necessary, which wasn't presented to the defense prior to Paulus's 2016 trial (which resulted in a conviction), meaning the impact on the new trial was potentially "enormous."

The defense highlighted the issue with the late disclosure, stating the prosecution should have known about it because of their communication with Aetna investigators since 2012.

Per court records, Paulus attorneys stated prosecutors learned of a note containing the findings of the reviewed sample on Oct. 10 and waited days to share it with the defense, "robbing (Dr. Paulus) of crucial time."

To properly review the audit, its findings and medical records of the 18 patients who received stents by Paulus, the defense filed a motion to subpoena information from Kings Daughter's Medical Center — an outside party with the only access to the unredacted information.

Counsel for KDMC responded promptly to the subpoena, four days before the trial was set to start, relaying to the court that without names of patients, KDMC would have to review every medical record sent to Aetna during that time frame, which KDMC said would take "months to complete such a review."

The defense said they required the information as it could dictate how they cross-examine and present evidence to practicing cardiologists scheduled to testify, hoping to establish Paulus practiced medicine similarly if expert witnesses agreed with Paulus's interpretations of blockages and resulting procedures.

In the emergency motion to continue the trial, the defense said Aetna had since provided several pages relating to the requested medical records containing "critical information," but the information needed to be further redacted, requiring further delay.

The prosecution pushed back to delaying the trial, calling the defense's request to further review the audit an eleventh hour "fishing expedition," adding the defense should have been well aware as Aetna requested the medical records to review from Paulus directly in 2013.

Per court records, Aetna requested 20 total procedures and pertaining medical records from Paulus for review and received the 18 in question.

The reviewing physician, as stated, was not a cardiologist, but a general surgeon, and the prosecution argues nobody knows if he reviewed angiograms — a form of X-Ray that aids in identifying blockages.

If the physician had seen angiograms, the prosecution argued he did not have the medical expertise to interpret them and therefore couldn't determine if a blockage required a stent or not.

If the physician had only reviewed medical records without diagnostic imagery, the prosecution wrote that only solidifies their stance that Paulus falsified records by elaborating the extent of blockages in order to place unnecessary stents — a question that couldn't be answered by only looking at the allegedly fraudulent medical records.

The prosecution also raised concerns over rescheduling their expert witnesses, many of whom are practicing cardiologists who had already blocked off a scheduled time to attend trial and re-scheduled their own patients to testify in Covington.

U.S. District Judge David Bunning granted the defense's motion to delay the trial by two weeks, moving jury selection to Nov. 2 and opening statements to Nov. 6.

KDMC and Aetna were ordered to turn over all pertinent records and communications by Wednesday.

(606) 326-2652 — mjepling@dailyindependent.com