By Ronald Chapman II

A federal jury acquitted Dr. Lesly Pompy of unlawful prescribing, healthcare fraud, and maintaining a drug involved premises after a month long trial. Dr. Pompy was represented by Ronald Chapman II of the Chapman Law Group and founder of Chapman Consulting Group. He was also represented by George Donnini and Joe Richotte of Butzel Long. The Government was represented by Wayne Pratt and Andrew Lievense of the U.S. Attorney’s Office for the Eastern District of Michigan. The trial lasted over a month and the jury deliberated about two and a half days before reaching a verdict of acquittal on all counts. This is the second subsequent acquittal achieved by Ronald Chapman against this office, the prior acquittal was of Dr. David Lewis who was charged, along with Dr. Rajendra Bothera and others in a $450 million health care fraud indictment.

The CHARGES AGAINST DR. LESLY POMPY

Dr. Lesly Pompy is an interventional pain management physician trained by the Cleveland Clinic who operated in Monroe Michigan handling some of the most complex pain management patients. His office was the subject of a DEA raid after the Monroe Area Narcotics Team (MANTIS) conducted an undercover operation into his practice. MANTIS sent in an undercover who was a Blue Cross Blue Shield investigator to attempt to receive pain medications. The undercover was armed with a fake referral from a local physician and complained of moderate pain in his lower back which he claimed was from a career as a driver.

After several visits Dr. Pompy elected to prescribe a low dose of Norco to the undercover agent despite urinalysis tests showing that the agent’s urine was negative for the controlled substance. Shortly after cessation of the undercover operation, MANTIS, the DEA and local authorities conducted a raid of the practice flooding dozens of armed officers and agents into the practice and interrogating patients and employees.

The case began at the State Level with the County ultimately electing not to pursue charges and instead pitched the case to the U.S. Attorneys Office for the Eastern District of Michigan. After a significant delay, the United States elected to charge Dr. Pompy in a 38 Count indictment alleging that he unlawfully prescribed controlled substance medication to several patients including the powerful fentanyl medication Subsys. The indictment also alleged that he engaged in health care fraud for billing a higher evaluation and management codes for services rendered. In addition, the Government charged Dr. Pompy with maintaining a drug involved premises - essentially claiming that he was running a practice for the primary purpose of unlawfully distributing controlled substances.

After a Month Long Trial Dr. Pompy Was Acquitted of all Counts of Health Care Fraud and Unlawful Prescribing

Due to the tragic death of the presiding judge, Hon. Arthur Tarnow and due to the COVID-19 pandemic, the case took several years to proceed to trial. At trial, the Government sought to prove that Dr. Pompy knowingly prescribed controlled substances including Hydrocodone, Oxycodone, Morphine, Oxycontin, and Subsys to his patients. The Government selected several patients as examples of what it thought was unlawful prescribing. As the trial progressed, it became clear that each of the patients suffered debilitating injuries and the Government’s issue was not that he prescribed but that he should have recognized “red flags” of unlawful drug diversion.

The Government also attempted to prove the health care fraud charges by alleging the “impossible day” theory. Under this theory, the Government alleges that a doctor is fraudulently billing because the number of evaluation and management codes billed exceeds the hours in a day. However, as Sean Weiss, an expert biller and coder from Doctors Management explained to the jury, evaluation and management codes are not based on time - they are based on complexity and Dr. Pompy saw some of the most complex patients. The impossible day theory was also alleged in the Bothra trial and similarly debunked.

In an attempt to prove that Dr. Pompy knowingly engaged in drug dealing and health care fraud, the Government called several employees, patients, and an expert witness Dr. Carl Christensen. However, as it became apparent that Dr. Christensen’s analysis of the health care fraud counts was incorrect - the Government elected to openly dismiss a count of the indictment during his re-direct examination. Ultimately, before the jury would get the case the Government dismissed several health care fraud counts and a “maintaining a drug involved premises” count indicating that even they believed they did not meet their burden at trial.

Dr. Pompy’s case-in-chief was brief but impactful. He called several patients from the practice along with several physicians that were aware of his reputation in the community as a great doctor. His case was also supported by two experts Sean Weiss and Dr. James Murphy, a Mayo Clinic trained pain management physician from Louisville Kentucky.

The jury deliberated for two and a half days but took a long break over the Christmas and New Years holiday. The jury returned on January 4th, 2023 and announced a verdict of acquittal on all counts of the indictment. Dr. Pompy was elated, his face streaming with tears as each count of the verdict was read by the foreperson.

Keys to Acquittal

The defense was aided by the fact that Dr. Pompy was always a caring and compassionate physician. His patients loved him and most of his employees loved him too. One patient openly professed his love for Dr. Pompy while on the witness stand, another government witnessed mouthed “I love you” as she left the stand. But the highlight of the trial was the courageous and impactful testimony of Diana Knight a long time patient of Dr. Pompy’s practice and also the practices biller. Despite being called by the Government to testify she openly told the jury and prosecutors that she was not on their side and that Dr. Pompy was a good man and a good doctor who loved his patients. She was shocked to find out the basis of two of the charges was her treatment - a fact that prosecutors failed to inform her of during her lengthly pre-trial preparation sessions.

The defense was also aided by the fact that Dr. Pompy’s patients all had objectively verified pain issues. Dr. Pompy performed a lot of tests such as MRIs, CT scans, blood work, and urinalysis tests to determine underlying pain conditions. In the recent Supreme Court case of Ruan v. United States, SCOTUS lowered the bar for physicians facing such charges requiring that the government prove that the doctor “knowingly” prescribed an unauthorized prescription. Applying Ruan to these facts, it became obvious that the Government’s issue - “ignoring red flags” amounted to a mere difference of medical opinion between Pompy and the Government’s expert.

Finally, the defense was aided by diligent trial preparation. Teams from three entities gathered together to prepare the case, Chapman Law Group, Chapman Consulting Group and the talented counsel at Butzel Long. All members of the defense team including the talented health care fraud investigators at Chapman Consulting Group banded together to create a picture of a compassionate physician who was doing the best with what he had.

Pre-trial investigation was conducted by Mike Staples, Stefanie Marquis, Marc Caudal and Dr. Art Smith of the Chapman Consulting Group. Their investigation team was able to interview favorable witnesses and determine that several of the government witness statements did not accurately reflect the sentiment of the witness. Medical record summaries were created by Stefanie Marquis who summarized thousands of pages of medical records to provide the complete picture to the jury. Health care fraud defense investigator Mike Staples provided expert advice to the trial team and investigation to pierce the government’s case and provide valuable insight into the failings of the undercover operation against Dr. Pompy.

The lawyers, paralegals and support staff at Butzel Long with their significant resources expertly prepared to battle the government on every aspect of the case leaving no stone unturned in their preparation. This was a significant team effort and victory would not have been possible without the valuable contribution of each member of the defense team.