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Apr. 29, 2008
Copyright © Las Vegas Review-Journal

Judge orders immunity for doctor in Gage case

By ADRIENNE PACKER
REVIEW-JOURNAL

The government's criminal case against personal injury attorney Noel Gage took a hit Monday, when a federal judge ordered prosecutors to grant immunity to a witness whose testimony could benefit the defense.

U.S. District Judge Justin Quackenbush ordered the U.S. attorney's office to grant immunity to Dr. Mark Kabins by Friday or he will dismiss the fraud case against Gage.


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    • Natalie Collins, a spokeswoman for the U.S. attorney's office, and Thomas Pitaro, Gage's attorney, declined to comment on Quackenbush's decision.

    "Dr. Kabins is pleased that the court provided him with the same protection provided to Dr. (Benjamin) Venger and Dr. (John) Thalgott," said Kabins' attorney, David Chesnoff.

    The federal government claims the 69-year-old Gage belonged to a network of Las Vegas doctors and personal injury attorneys who conspired with self-proclaimed medical consultant Howard Awand to inflate clients' medical costs, protect doctors from medical malpractice lawsuits and share kickbacks from legal settlements.

    They referred clients with seemingly solid legal claims to one another, keeping the scam alive and the money flowing, according to prosecutors.

    A jury who heard weeks of testimony could not reach a verdict last month, and Quackenbush declared a mistrial. Gage's new trial is scheduled to begin on May 27.

    The case is centered on Melodie Simon, who underwent routine back surgery in 2000 and ended up paralyzed after a sac protecting her spine was punctured.

    Prosecutors told the jury that Gage initially told Simon that her case was solid and she could receive a judgment of between $8 million and $12 million.

    But, according to the government, Gage opted not to sue Thalgott and Kabins, the surgeons who operated on Simon, and instead went after the anesthesiologist. Simon was awarded a $2.3 million settlement, of which she received $1.3 million after attorneys fees and related costs.

    The government contends Gage switched courses when he agreed not to sue the surgeons for medical malpractice in exchange for a referral on a lucrative case that ultimately settled for $18 million.

    During the trial, Thalgott testified that he, Kabins and Gage had a secret meeting in 2001 and devised a plan to blame the anesthesiologist for Simon's injuries. Thalgott said he and Kabins agreed to tailor their testimony at Simon's trial to match Gage's argument.

    However, in motions filed by Gage's defense team, Kabins told federal authorities a different story shortly before Gage's trial began in February. During an interview with the FBI, Kabins explained that "Gage advised Kabins and Thalgott that he was not going to commit legal malpractice by promising not to sue them."

    The defense team suggested that Thalgott was offered immunity and Kabins was not because Thalgott's testimony supported the government's theory.

    "The government has used its power to get Dr. Thalgott to provide them with testimony that is beneficial to the government's case by giving him limited use immunity, but has not given the same benefit to Dr. Kabins, whose testimony will provide important and contradictory testimony, thus undermining the government's case," the defense argued to Quackenbush. "The government should not be permitted to benefit from this ploy."

    The jury deliberated for one week before announcing they could not reach an unanimous decision.

    A defense attorney unrelated to the case said the government should be concerned if three or four jurors sided with Gage. Eight jurors sought a guilty verdict, resulting in a hung jury. After the mistrial was declared, U.S. Attorney Gregory Brower said he was looking forward to retrying the case.

    The order to grant immunity to Kabins and the mistrial were not the only hits the government has taken in what was said to be a massive case that would ultimately include several high-profile doctors, lawyers and even judges.

    The day the case was handed over to the jury, Quackenbush dismissed 13 of the 19 charges against the personal injury attorney. Most of those charges related to Gage's dealings with the family of Carlos Pachas, a Las Vegas man who underwent kidney surgery and emerged from the operating room in a permanent vegetative state.

    Quackenbush, noting the $18 million settlement Gage had negotiated, told the government it failed to provide adequate evidence that the attorney had defrauded the Pachas family.

    If charges against Gage are dismissed, the government will set its sights on Awand, who is scheduled to go to trial in October.

    Contact reporter Adrienne Packer at apacker@reviewjournal.com or 702-384-8710.

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    Bruce Hayden wrote on August 22, 2008 10:37 AM: What is disgusting about this is all 3 of them, Kabins, Thalgott and Venger got off unscathed and they buried an innocent and nice man, Dr. Birkhead. This is what rich people (and I mean VERY rich people) will and can do. But, this IS Nevada and there is NO place more crooked in it's politics

    Just to update - Dr. Kabins was apparently exonerated, and Dr. Venger's biggest failing apparently involved the IRS.


    Bruce Hayden wrote on August 22, 2008 10:34 AM: Awand, Gage, Mainor (deceased), Harris, Vannah, Eglet(s), Schupp, Ganz, Henness, Baker, Bertoldo, Carter, Kabins, Lemper, Leon, Kozmary, Kraft, Prater, Oliveri, McNulty, Thalgott, Venger, Grover, Iglikowski . . . . .

    Ladies and Gentlemen, we present The Medical Mafia

    Looking through that list, I am surprised at the number of the doctors there whom I have had seen the results of their work. And to a one, they were excellent. Most recently, Dr. Leon came in from a Sunday barbecue to perform an emergency procedure. Dr. Kabins then did the reconstructive surgery, and Dr. Iglikowski did the follow up on the days when Dr. Kabins could not due to his work load.

    Your list includes some of the best doctors in Las Vegas. Seeing their work, I would hesitate to go to anyone else if I were faced with serious spine issues.


    buRNed wrote on July 21, 2008 02:34 PM: What is disgusting about this is all 3 of them, Kabins, Thalgott and Venger got off unscathed and they buried an innocent and nice man, Dr. Birkhead. This is what rich people (and I mean VERY rich people) will and can do. But, this IS Nevada and there is NO place more crooked in it's politics


    STAN BOWKER wrote on July 14, 2008 06:13 PM: As a former patient of Dr Kabins, I can tell you that when he was confronted with the prospect of an investigation he falaciously altered my original diagnosis. He later admitted regret, but not publicly. This has caused me a lot of grief. a sleazy move which cost me my job, generated 2 eeoc complaints thus far, and 2 nlrb complaints. Just try to convince someone a doctor is this dirty and the suspician falls to you. Dr Kabins did, in fact, alter my diagnosis to please the insurance company who threatened him.


    Keep up the good fight wrote on April 29, 2008 09:04 PM: I personally want to thank the feds for their efforts in this matter. It is time to clean up our corrupt court system.

    Many citizens consider this a step toward deliverance from the atrocities that occur daily at the RJC under the guise of justice.

    Thanks again to the dedicated hard working agents and prosecutors. There are many that appreciate what you are doing.


    oldlawdawg wrote on April 29, 2008 07:49 PM: I still say Ray Leon was never as involved as the others, and he dramatically cut back on the Awand/Hershfeld type of "case management" long ago. Even then, Leon has generally played it pretty straight and called things as he saw them -- as he was free to do since, in most cases, the ortho surgeon has already made the call as to surgeries, and use of a spinal cord stimulator and/or interthecal pump is already on the table and calculated into the life/care plan by others like Oliveri. Generally, Leon does not over-treat as some claim Brian Lemper is so willing to do, and Leon is generally more willing to discount liens than the others (and lien treating, like a lawyer's contingency fee, is not illegal or presumtively unethical, but does allow a plaintiff to get treatment and into court without going bankrupt). Moreover, because Leon generally did not insist upon being designated as an expert and usually testified as a treater, he was less likely to "double dip" by lien treating while being paid enormous expert witness fees. Nobody is a saint here, I think Leon is head and shoulders above the others.

    While we may not "like" the greed these doctors displayed, absent "testilying," little if anything most of these guys did was illegal given that medical opinions differ as to what is and is not "reasonable" or "necessary" care in any given case, and there is absolutely no reason why a doctor providing services to a patient which are not being paid for by an insurance company should accept insurance company rates for his services, lien or no. Greedy, certainly, but absent perjury, unnecessary or contra-indicated procedures or misrepresentation to the patient, these doctors are not criminals.

    The lawyers, however....


    Following This Case wrote on April 29, 2008 07:06 PM: Awand, Gage, Mainor (deceased), Harris, Vannah, Eglet(s), Schupp, Ganz, Henness, Baker, Bertoldo, Carter, Kabins, Lemper, Leon, Kozmary, Kraft, Prater, Oliveri, McNulty, Thalgott, Venger, Grover, Iglikowski . . . . .

    Ladies and Gentlemen, we present The Medical Mafia


    What wrote on April 29, 2008 06:39 PM: Did Quackenbush site any law or rule when he made this decision?



    Or did pull a Saitta and legislate from the bench?


    What wrote on April 29, 2008 06:39 PM: Did Quackenbush site any law or rule when he made this decision?

    Or did pull a Saitta and legislate from the bench?


    oldlawdawg wrote on April 29, 2008 11:34 AM: Quackenbush is just plain dead wrong about immunity, and Gage, Awand, Vannah and others will skate no matter what. It's plain old BS.


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