KY Physician Fully Acquitted of All Federal Charges

By: Ronald W. Chapman II

The acquittal of Dr. Kousa marks the fifth prominent Federal acquittal this year by Ronald W. Chapman II in healthcare fraud and opioid cases. Previously he defended Dr. Lesly Pompy, Dr. David Lewis and Dr. Thomas Sachy all acquitted of drug trafficking and healthcare fraud charges and Dr. Reyes who received dismissal of a federal healthcare fraud indictment.

Paintsville Kentucky Doctor Acquitted of All Nine Charges Including Drug Distribution and Healthcare Fraud

If you take the nearly three-hour drive from Lexington Kentucky into the Appalachian mountains you’ll eventually come across a small mining town not far from the West Virginia boarder called Paintsville. Some tourists find beauty in its rugged hills, creeks and lakes. Others work a hard day in the coal mines exposing themselves to black lung and other diseases.

Nearly 30 years ago a Syrian immigrant came to the United States to practice medicine. At that time, doctors who agreed to work in underserved communities found an easier path to licensure and citizenship. 30 years later Dr. Loey Kousa could still be found rushing to the local Paul B. Hospital in the evening to treat a patient or handling the wealth of primary care complaints impacting local residents.

Every day for 30 years Dr. Kousa would work nearly 16 hours a day, rounding at the hospital early in the morning, a primary care shift at his practice during the day, and another set of rounds and the hospital or the local nursing home in the evening. He’d stay up late charting and then wake up early to rinse and repeat. He did it because he loved medicine, he did it because he loved his patients, and he did it because that’s how he created a beautiful life for his family.

DEA Undercover Operation During COVID-19

On April 15, 2021 a DEA undercover operation launched by the local task force, which had targeted other local doctors, was turned on Dr. Kousa.

Typically the DEA will target a physician who is an outlier and where there was at least some smoke. But this small town task force that had acquired a lot of hammers from the Appalachian Regional Prescription Opioid Task Force was running out of nails. So they targeted Dr. Kousa.

Armed with a camera secretly placed in a key fob and a long list of “fake” medical ailments the undercover scheduled an appointment to see Dr. Kousa during the worst pandemic this country has faced since the Spanish Flu – a time when our healthcare workers were hailed as heroes.

Ignoring the fact that both Kentucky and the DEA greatly relaxed rules for physical examinations and prescribing standards – the DEA Task Force Officer plodded ahead in his investigation to try to get controlled substances from Dr. Kousa. No doubt relishing the idea that he could ensnare a physician and anticipating the back slapping that would ensue.

He lied about his ailments, claiming a shoulder injury, bipolar disorder, and high blood pressure. He lied about his pain, claiming he couldn’t sleep and was “crushing Tylenol”. Offering greater service than both the DEA and Kentucky regulations require (Telehealth was uniformly authorized), Dr. Kousa had his patient come in the office and get an x-ray, urine drug test, bloodwork and a complete workup.

What was missing?

A physical examination which was not required by Medicare, Medicaid, and the DEA.

After five visits, relentless pressure from the undercover, and a review of tests, Dr. Kousa reluctantly prescribed a low dose of a drug that was originally not a controlled substance, Ultram. After another visit and more pain complaints Dr. Kousa began to prescribe a low dose of 5mg Hydrocodone. The trap was sprung.

Not long after, Agents from the FBI, DEA, and local authorities swarmed his office, carted out medical files and began interviewing his patients and staff. But after a lengthy investigation into a supposed pill mill, they were only left with evidence of the undercover visit and some charting errors.

Dr. Kousa Indicted for Drug Trafficking and Healthcare Fraud

An indictment came shortly after, charging Dr. Kousa with violation of 21 U.S.C. 841(a)(1) unlawful distribution of controlled substances. A charge that was supposed to be for drug dealers but has now become a DEA tool to shape the practice of medicine. Federal prosecutors sprinkled on other charges based on charting errors and over-billing evaluation and management codes.

The case was set for trial in July 2023 in London Kentucky, an almost three-hour drive for the patients and local physicians who supported him.

Dr Kousa’s trial attorneys, Ronald W. Chapman II and Matthew Pelcowitz of Chapman, Dowling & Mallek prepared a robust defense which included the local ER physicians from Paul B. Hospital, a Pharmacist patient who had seen Dr. Kousa for 30 years and several other local resident patients as well as expert witnesses Dr. James Murphy, Sean Weiss, and Mike Staples.

Cross-examination of the undercover detective revealed that he entered the practice not knowing DEA restrictions and he later admitted that Dr. Kousa did more than the DEA required him to do. Cross-examination of the Government’s Colorado expert showed a highly technical application of the requirements of the practice of medicine – a standard not fitting for a small town Appalachian doctor.

Gaps in the government investigation were evident- no medical board complaints, no significant prior insurance audits, no pharmacists complaints, no signs of over medicated or intoxicated patients. The case fit like a round peg in the traditional pill mill square hole.

The Acquittal of Dr. Loey Kousa

After four days of Government evidence and a two-day defense case, closing arguments were delivered and the jury began deliberations. The jury emerged the next morning with a verdict.

Not Guilty on Count 1,

Not Guilty on Count 2,

Not Guilty on Count 3,

Not Guilty on Count 4,

Not Guilty on Count 5,

Not Guilty on Count 6,

Not Guilty on Count 7,

Not Guilty on Count 8,

Not Guilty on Count 9

Dr. Kousa’s head slumped as the verdict was read, the weight of the last three years visibly lifting off of his shoulders. His sister, also a physician in Paintsville quietly sobbed in the back of the courtroom. That night, Dr. Kousa drove with his wife, sister, and three young children home to begin his life anew.