Last year federal prosecutors in Maryland secured the conviction of Dr. Ron Elfenbein, an emergency room doctor and part owner of an urgent care clinic and COVID testing sites, on charges that his clinics overbilled Medicare and insurance companies for testing services. With the government alleging there were more than $15 million in false and fraudulent claims, Elfenbein faced the prospect of significant prison time.
But just before Christmas, Elfenbein’s defense lawyers—Gregg Bernstein, Marty Himeles and Samantha Miller of Zuckerman Spaeder—won their bid for a post-trial acquittal. Chief Judge James Bredar found that the government hadn’t proven the way Elfenbein’s testing locations coded their services was false beyond a reasonable doubt—especially in light of the shifting and ambiguous coding guidance issued during the pandemic. “The ‘common sense’ conclusions the government asks the jury (and now the court) to draw amount to speculation, and the court cannot allow a verdict to stand when it is based on speculation masked as common sense,” he wrote.
