EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, August 27, 2011

Under One Condition: Eastern District Of Pennsylvania Finds Evidence Of Doctor's Alcoholism Conditionally Relevant

Back in January, Joseph J. Kubacki, the former chair of the Temple University School of Medicine Ophthalmology Department, was charged with fraud and making false statements in health-care matters in a 144-count indictment from the United States Department of Justice.

Kubacki, a pediatric eye specialist, is accused of falsely claiming between 2002 and 2007 to have provided more than $1.5 million in services to patients at a clinic run by the ophthalmology department. The indictment says Kubacki, who had an office at Temple University Hospital, made notations in the charts of patients, seen by other doctors, indicating that he also had seen and evaluated those patients – when he hadn’t. In some cases, he wasn’t even in town when the patients were seen.

Recently, the government sought to introduce evidence relating to Dr. Kubacki's alcohol abuse when at the Ophthalmology Department. And as the United States District Court for the Eastern District of Pennsylvania noted in its recent opinion in United States v. Kubacki, 2011 WL 3627317 (E.D. Pa. 2011), the admissibility of this evidence required a finding of conditional relevance.

In Kubacki, the government claimed that Dr. Kubacki's alcohol abuse made it more probable that Defendant committed health care fraud. As the Eastern District of Pennsylvania correctly noted, however, Dr. Kubacki's "alcohol abuse [wa]s only relevant to [his] commission of the crimes in question if the Government can establish that this alcohol abuse caused [him] to see a lower volume of patients. In other words, the alcohol evidence was only admissible if the government sufficiently satisfied Federal Rule of Evidence 104(b), which provides that

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

In other words, here is a diagram of the relevancy of the alcohol evidence in Kubacki:

-evidence of Dr. Kubacki's alcohol abuse (fact)

-seeing a lower volume of patients (conditional fact)

-motive to commit health care fraud (relevance)

Thus, the evidence of Dr. Kubacki's alcohol abuse was only relevant to prove his motive to commit health care fraud if a reasonable juror could find the conditional fact -- seeing a lower volume of patients -- by a preponderance of the evidence.

And, according to the court,

The Government intends to prove the impact of Defendant's alcohol use via residents and other physicians who worked with Defendant. These witnesses will testify to the fact that Defendant drank frequently while at TUH and, when he drank, he did not attend to patients because he was in the conference room or his office. Also, the resident physicians will testify that, at times, when they saw Defendant at TUH they perceived him as being impaired and because of this did not seek out his assistance with patients. Rather, these resident physicians turned to other physicians for help thus increasing the volume of patients other physicians saw. Based upon this testimony, the jury could reasonably find that Defendant was seeing a low volume of patients due to his alcohol use. Because the Government has proffered evidence that, if accepted by the jury, would establish that Defendant's alcohol abuse caused a decline in the amount of patients he saw, this evidence will be deemed relevant.



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