The United States Court of Appeals for the Eleventh Circuit has upheld the convictions of Dr. David M. Pon on 20 counts of healthcare fraud. The Eleventh Circuit also rejected Pon’s challenges to his 121-month sentence. According to evidence presented at his trial, Pon, an ophthalmologist, intentionally and fraudulently misdiagnosed hundreds of Medicare beneficiaries as suffering from wet macular degeneration, a degenerative and incurable eye disease. Pon then used his false diagnoses to bill the Medicare program for unnecessary diagnostic testing and unwarranted laser treatments. Several of the misdiagnosed patients testified and explained the significant emotional impact the false diagnosis had on their lives, including the fear of going blind as a result of the disease they supposedly had. On appeal, Pon did not challenge the sufficiency of the evidence against him. He instead challenged the district court’s evidentiary rulings at trial. He argued that the district court should have allowed his expert to testify about a theoretical treatment method for wet macular degeneration. He also argued that the United States should not have been allowed to present rebuttal evidence showing that Pon had billed Medicare for performing services on a patient’s blind left eye, or, at a minimum, should have allowed him to respond more extensively to that evidence in surrebuttal. The Court of Appeals upheld the district court’s ruling that Pon’s expert’s theory was unreliable, noting that even Pon’s expert recognized that his theory had not been scientifically tested and he had “not seen … clinical data” about it.
