The federal judge in the Kansas City Medicare kickback case has expunged three lawyers' names from briefs submitted to the court in which they were described as "unindicted co-conspirators."
The three had asked the court to clear their names and declare that they had done nothing illegal.
U.S. District Judge John Lungstrum granted their request, acknowledging they had been unfairly tarred by the prosecutor.
"I'm totally satisfied with (the judge's order)," said Gina Kaiser, one of the lawyers named. "As far as I'm concerned, I've been vindicated."
In a pre-trial motion she filed Aug. 21, 1998, Assistant U.S. Attorney for Kansas Tanya Treadway identified Kaiser, Craig Holden and David Queen as co-conspirators in a payment-for-patients kickback scheme. Every time their names appeared in the brief, the words "unindicted co-conspirators" preceded them.
Kaiser is general counsel at Health Midwest, the parent company of Baptist Medical Center, where the criminal violations occurred. Holden and Queen are attorneys with the Baltimore firm Ober, Kaler, Grimes & Shriver, who worked for the hospital during the investigation.
The three are among what is believed to be more than 30 people considered by the prosecutor's office as unindicted co-conspirators in a huge case involving seven defendants and five hospitals.
On April 5, the government obtained convictions against two doctors and two hospital executives at Baptist for paying kickbacks for Medicare patient referrals and participating in a conspiracy.
A fourth person mentioned in the prosecutor's motions as an unindicted co-conspirator, Kevin McGrath, did not ask the judge to remove his name, and is not covered by Lungstrum's order.
The judge issued the order May 7 under seal. On request of Kaiser, Queen and Holden, it was unsealed June 4.
"The court believes the (three) suffered a violation of due process when the government publicly named them," Lungstrum wrote.
It is considered a breech of U.S. Justice Department protocol to publicly brand people as unindicted co-conspirators because they have no opportunity to clear their names, the lawyers said.
Lungstrum also said there was no evidence to suggest the three had been involved in any criminal activity.
Kaiser said that because she's employed by a hospital, she didn't lose any clients because of the publicity. "On the other hand, from a purely reputational point of view, no attorney wants to be labeled as having potentially engaged in criminal activity. So yes, I think it damaged my reputation, but I can't point to concrete evidence of that."
The allegation was potentially much more damaging to Queen and Holden.
In a letter published in MODERN HEALTHCARE last fall, they called Treadway's characterization of their conduct "profoundly wrong and unfair. It should be clearly understood that this false characterization is simply a gratuitous statement by a prosecutor that has not been reviewed or endorsed by any independent body" (Oct. 5, 1998, p. 94).
Apparently the judge agreed.
"It's crystal clear from this opinion that the judge said that Mr. Holden and Mr. Queen acted properly, and the government by wrongly tarnishing their reputations did not," said Ankur Goel, their attorney. "It's the relief that we sought, and we're pleased with it."