Las Vegas spine surgeon Mark Kabins is seeking to have a federal case against him dismissed, arguing that he never defrauded patients or deprived them of honest services and that the government filed charges after the statute of limitations had expired.
Kabins is the most recent surgeon ensnared in a federal investigation into whether area doctors and personal injury lawyers conspired with each other to jack up medical costs, protect doctors from medical malpractice lawsuits and share kickbacks from lucrative legal settlements.
Kabins is accused of helping pin blame on anesthesiologist Dan Burkhead after patient Melodie Simon was paralyzed following back surgery in 2000. The government claims Kabins and then-partner John Thalgott offered to testify against Burkhead on behalf of Simon's personal injury lawyer, Noel Gage, if Gage agreed not to sue them for medical malpractice.
The conspiracy case centers on Simon, who underwent routine back surgery on Aug. 3, 2000, to remove screws in her lumbar region. Simon suffered severe pain a day after the surgery. Five days later, she was paralyzed.
The government claims Kabins and Thalgott were at fault. Had Gage sued the surgeons, prosecutors claim, Simon could have received a settlement between $8 million and $10 million. Instead, she received $2 million total from Burkhead and his employer Summit Anesthesia.
In his motions filed earlier this week to dismiss the charges, Kabins' lawyer David Chesnoff said experts have determined that Simon's injury was not caused by the surgery or the physicians' reaction to her problems.
"A spinal tap performed on Aug. 17, 2000, indicated that the paralysis was the result of inflammatory myelitis, the cause of which was independent from and unrelated to the surgery performed by Dr. Kabins," the motion states.
Chesnoff said the paralysis was caused by Burkhead, who pricked Simon numerous times while trying to insert a catheter to relieve the pressure on Simon's spine. Chesnoff said Burkhead, who had performed the procedure only in medical school, never noted in Simon's medical record his struggles to insert the catheter.
Christopher Curtis, Burkhead's attorney, cited the failure to report the catheter troubles in his recommendation to settle the lawsuit. Chesnoff said Curtis noted "that Dr. Burkhead's failure to document the multiple sticks in Simon's medical record tended to support Simon's argument that, in so doing, Dr. Burkhead was seeking to cover up his mistake."
Chesnoff said Burkhead performed the procedure in Simon's hospital room rather than an operating room, where equipment that guides the catheter is available.
Nearly 12 hours lapsed between the time Kabins was informed of Simon's symptoms and when he began emergency surgery. However, Chesnoff argued that experts have said she would have been paralyzed even if the surgery took place immediately.
The government claims medical consultant Howard Awand coordinated the network of corrupt doctors and attorneys. Awand sent patients to the doctors who in turn would recommend the personal injury attorneys. Awand awarded those who participated in the scheme with lucrative cases, the government alleges.
One of several problems with the government's allegations, according to Chesnoff, is that they come too late.
The two-year statute of limitations for Simon to have filed a medical malpractice lawsuit against Kabins expired in 2002. The government's five-year statute of limitations for Kabins' alleged fraud expired in 2007. Kabins wasn't indicted until March of this year.
A jury trial involving Gage ended last year when the judge tossed the case out. U.S. District Judge Justin Quackenbush chided the government for offering immunity to Thalgott, who testified at Gage's trial, but not to Kabins. Quackenbush sided with Gage's attorneys, who claimed that Kabins' testimony would have contradicted that of Thalgott.
Awand has yet to stand trial.
Contact reporter Adrienne Packer at apacker @reviewjournal.com or 702-384-8710.
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