Dr. Richard Paulus

ASHLAND A federal district court judge has denied Dr. Richard Paulus’ motion for a dismissal of charges based on double jeopardy grounds, a ruling states.

Judge David L. Bunning denied Paulus’ motion last week based on the grounds that three motions for a new trial would meant he essentially waived his Fifth Amendment right to avoid double jeopardy, which is means a defendant cannot be tried for the same crime after an acquittal.

Paulus has appealed Bunning’s ruling and has until Sept. 18 to get the necessary forms into the appeals court.

Paulus was convicted by jury in 2016 of medical fraud for allegedly performing unnecessary stent procedures to bilk Medicare and other insurers out of money. Bunning issued a post-trial acquittal in 2017, which was overturned by the Sixth Circuit Court of Appeals. Prior to sentencing in 2019, the government got the go-ahead to disclose a letter to Paulus from an internal King’s Daughter Medical Center review that found 7% more than 1,000 analyzed procedures were found to not have satisfactory blockage.

That letter — and the review that spurned it — is the center of another legal battle U.S. Attorneys are fighting with the hospital.

Paulus used that letter to appeal again to the Sixth Court of Appeals, which vacated his conviction. Paulus has since argued that by setting aside the conviction, the court has overruled the first appeal.

Bunning isn’t buying the argument in his 14-page memorandum decision.

According to Bunning, the double jeopardy clause of the Fifth Amendment can be tossed out in very limited circumstances — but one of the main ways is if a defendant has requested a new trial alongside motions for an acquittal.

Prior to sentencing, Bunning denied three motions by Paulus for a new trial. By asking for those new trials — which the Sixth Circuit also instructed Bunning to order upon the second ruling in the case — the judge argues that Paulus consented to a second trial.

That consent is good enough to prevent the court from violating the double jeopardy clause, according to Bunning.

In addition, Bunning stated that he still can’t ignore the first appeal, in which the appeals court ruled against Paulus and reinstated the conviction. The judge stated that the court never took the time to overrule itself in the second decision.

Because the court did not overrule itself, the judge stated he can’t ignore the entirety of the first decision. That’s because the district court has to observe the rulings of the appeals courts, which sits above it in the federal court structure.

As far as the KDMC-U.S. Government records dispute is concerned, federal prosecutors filed a reply brief on Friday. While KDMC argued that there had been an agreement that disclosing the Shields Letter — the letter reflecting the 7% figure in terms of procedures performed by Paulus for unnecessary heart blockages — was a limited waiver of confidentiality, the government stated it never agreed to that.

“A one-sided assertion that ‘we agreed’ does not make it so. Other than self-serving statements made in various correspondence from KDMC’s outside counsel, there is no evidence of an agreement. KDMC cannot point to any email, letter or other written consent to KDMC’s preservation of its privileges by counsel for the United States, because none existed,” prosecutors wrote.

Furthermore, federal prosecutors argued that the court has never ruled on the privilege issue, that confidentiality in settlement agreements doesn’t necessarily apply to evidence that could be used in a criminal case and that Paulus joining KDMC in defending its confidentiality is contradictory due to his prior arguments for admitting the same evidence during his appeals.

Federal prosecutors ultimately want to have a review of a portion of the subpoenaed documents in judge’s chambers to figure out which ones would not be considered privileged.

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