How does U.S. improve its health care if the president excuses wrongdoing?

philipesformes-150x150chriscollins-150x150Leave it to the extreme actions of the current White House occupant to disprove Shakespeare and the adage  that the quality of mercy cannot be strained. Some of the dozens of President Trump’s latest acts of clemency, with more likely to be granted, are sending bad messages of who gets ahead in a rapacious U.S. health care system.

Their elected representatives are supposed to be among the chief guardians of Americans’ health interests, which is why President Trump’s excusing of the wrongdoing of a trio of onetime GOP congressman has infuriated many.

Two of the pardoned House members (Duncan Hunter of San Diego and Steve Stockman of Texas) were caught with their mitts in their donations or campaign funds, one spending sizable sums on family vacations, theater tickets, and an extramarital affair.

A congressman crooked with Big Pharma stocks

Chris Collins, a Buffalo representative (shown above, left), got himself ensnared as a public official in insider trading of Big Pharma interests, after becoming one of the major shareholders and a board member of Innate Immunotherapeutics, a small Australian bio-tech firm that hoped to develop a treatment for muscular sclerosis.

He promoted Innate relentlessly, boasting about how he would enrich friends and family in Buffalo — as well as colleagues in the U.S. House, if they, too, would buy the relatively inexpensive shares in the little known company. Collins’ bragging, other lawmakers said, occurred at congressional functions, including in a loud conversation overheard just off the House floor.

He became so blatant in hyping Innate that it attracted the attention and ire of good government groups and the late Rep. Louise M. Slaughter. She was a senior Democrat who represents a Rochester-based district just to the east of Collins’ district. She also was the lead Democratic author of a 2012 law known as the STOCK Act that banned federal officials, supposedly including lawmakers and members of the president’s cabinet, from insider trading.

She and others asked the House and the SEC to investigate Collins and Tom Price, then a Georgia GOP congressman who Trump later appointed as the powerful Health and Human Services agency. Price was fired from that role due to his penchant for taking costly private and military jet flights.

As for Collins, he pugnaciously defended his stock dealings. He used campaign funds to pay for his legal defense, and asserted his vindication from insider-trading charges would come, in part, from his losses on his Innate shares — millions of dollars. But federal prosecutors and court documents explained his loss occurred only due to trading circumstances: Innate learned that its MS drug had failed a crucial clinical trial and had halted trading of its shares in Australia, as it had done before for various reasons.

Collins, prosecutors assert, learned as a board member about the clinical trial and how it soon would send Innate shares plunging. He could not rid himself of his holdings, partly because the SEC and House ethics officials already were watching him but also because his shares as a director were held in Australia, and, thus, were frozen.

Instead, he made frantic calls to his son, who, in turn, launched warnings to others. (Talk about bad timing and worse conduct: Broadcast outlets have footage matching when prosecutors assert Collins made the dicey calls — he did so from the White House, where he was attending a congressional picnic.) They cashed out of their Innate holdings, doing so on American exchanges where the shares still could be traded. Prosecutors said Collins and family members, notably his son, daughter-in-law, and her father, made more than $780,000 on their insider-information and avoided big losses on Innate.

The wealthy, powerful congressman started to change his tune about the charges against him after prosecutors started to show the overpowering case against him, and as Collins saw how he had wrecked lives of others surrounding him. His son received probation and a rebuke for not only failing to stand up to his father for spilling privileged information but also for then seeking to protect his then-fiancé’s father from stock losses. Young Collins’ father-in-law also was not criminally charged but was hit with civil penalties and was barred for five years from practicing his profession of accounting.

The congressman, 70, sprung for months of incarceration, admits his wrong-doing readily and promises he will spend his life trying to help others, the Buffalo News, his hometown newspaper, reported.

But really, aside from having been one of the earliest members of Congress to endorse Trump’s presidential bid, why were Collins, Hunter, and Stockman shown such leniency when they had such power and authority and abused it as they did? Their contrition seems to have started only after prosecutors had them all but locked up. And what about the pledge to “drain the swamp”?

A nursing home magnate chiseling Medicare

Trump also has set off alarms with his commutation of the remaining prison sentence for Philip Esformes, 52, a nursing home operator (shown above, right). Esformes was sentenced to 20 years in prison for a two-decade scheme that involved an estimated $1.3 billion worth of fraudulent Medicare claims in what prosecutors called one of the largest health care bribery and kickback scheme they had uncovered. Here is what the Chicago Tribune reported of the wrongdoing:

“Esformes, who once controlled a network of more than two dozen health care facilities that stretched from Chicago to Miami, garnered $1.3 billion Medicaid revenues by bribing medical professionals who referred patients to his Florida facilities then paid off government regulators as vulnerable residents were injured by their peers, prosecutors said. He housed elderly patients alongside younger adults who suffered from mental illness and drug addiction — sometimes with fatal results. In Esformes’ Oceanside Extended Care Center in Miami Beach, ‘an elderly patient was attacked and beaten to death by a younger mental health patient who never should have been at (a nursing facility) in the first place,’ prosecutors wrote in a pre-sentencing memo … ‘Miami is the epicenter of health care fraud, there was no one like Philip Esformes, he was king,’ prosecutor Allan J. Medina told the [accused’s sentencing] judge …Many of his younger, drug-addicted patients spent the daylight hours wandering the streets of Miami while he collected government payments for services that were never delivered, prosecutors said. ‘Philip Esformes used deceptive and calculated means to orchestrate a fraud of the magnitude that we have not seen before,” Medina said. People who needed to get better, who wanted to get better, they had no shot. His fraud involved thousands of patients, 16 nursing homes, the systematic payment of bribes, a complex web of bank accounts, and brazen obstruction of justice to try to prevent it all from coming to light,’ prosecutor Elizabeth Young wrote in a sentencing memo …”

Esformes, before his indictment, conviction, and imprisonment, had a record of philanthropy. But his sentencing judge noted that it needed to be balanced with the reality that his generous giving was rooted in wealth acquired by ripping off patients and the government. As a defendant, Esformes expressed regret for his “reckless … and arrogant” conduct, promising he would redeem himself with good works, if given the chance.

As the New York Times reported, tens of thousands of dollars in donations by Esformes and his allies have gone to the Aleph Institute, a Jewish humanitarian nonprofit group that advances prisoners’ rights and “worked with the White House on criminal justice issues, including clemency and legislation overhauling sentencing laws that was championed by Mr. Trump and Jared Kushner, his son-in-law and adviser.” Administration officials deny that there is a link between the institute, Kushner, the president, and the Esformes friends and Trump allies like attorney Alan Dershowitz.

But the newspaper reported that the clemency for Esformes has drawn attention because:

“His rapid path to clemency is a case study in how criminals with the right connections and resources have been able to cut through normal channels and gain the opportunity to make their case straight to the Trump White House … Mr. Trump has largely overridden a highly bureaucratic process overseen by pardon lawyers for the Justice Department and handed considerable control to his closest White House aides, including Mr. Kushner. They, in turn, have outsourced much of the vetting process to political and personal allies, allowing private parties to play an outsize role in influencing the application of one of the most unchecked powers of the presidency.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the fortitude that it requires for them to seek justice in the too often unfamiliar and intimidating legal system. Too many doctors, hospitals, insurers, and others may demean plaintiffs and actions like malpractice lawsuits as hasty nuisances pressed by the grasping and greedy.

The facts show that civil and criminal actions, especially when pursued before judges and juries to their fair and reasonable end, can be good for society and its institutions. Legal proceedings like malpractice suits can expose wrongs and provide importance paths to corrective actions, especially where systemic problems exist and have not been corrected. Pardons and executive interventions, as legally permitted, can provide an important corrective of errors or flaws in our legal system.

But end-of-term flurries of presidential largess also can be corrosive to public trust and confidence, especially if political cronies get advanced to the front of what is a long line of thousands of aspirants for executive mercy.

A cast of sketchy characters

Trump does more than raise eyebrows or greater concern with his increasing list of the politically connected who benefit from pardons or commutations. He has thumbed his nose at congressional watchdogs and slashed at the national security by reversing convictions of multiple dubious characters who helped him get elected while also tying up with foreign adversaries. He damages our global standing by giving new legal approval to the unacceptable killing of innocents overseas by military contractors. He undercuts law enforcement and efforts to restrain police use of excessive force by rewarding with a pardon a former Prince George’s County canine police officer who was convicted of a federal civil rights violation and eventually served 10 years in federal prison for releasing her police dog on an unarmed homeless man.

The president surely harms oversight in health care when he winks at congressional insider trading of Big Pharma stocks or frauds that gouge taxpayers’ Medicare program. He makes a mockery of fairness in the criminal justice system when, as Mother Jones reported, he pardons “a Pittsburgh oral surgeon named Alfonso Costa, who committed criminal health care fraud. Costa just happened to be a close friend of Ben Carson, the secretary of Housing and Urban Development, and he had helped Carson pocket hundreds of thousands—perhaps millions—of dollars.”

The Constitution may seem to give the president wide discretion with pardon powers. That does not mean that Congress should not dig into the Trumpian spree of rewarding allies and cronies. Politicians from both political parties should condemn excesses in a presidential prerogative, so it does not wreck critical components of the American democracy, notably the fundamental notions of fairness and justice.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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