Medical Consultant Awand Sentenced for Cover-up in Fraud Case
Las Vegas, Nev. – The local medical consultant who admitted that he failed to report to proper authorities that attorney Noel Gage and spine surgeon Mark Kabins M.D., had committed fraud, was sentenced today to four months in prison, one year of supervised release, and ordered to pay $700,000 in restitution, announced Daniel G. Bogden, United States Attorney for the District of Nevada.
"We are very pleased to have resolved these cases with felony convictions and orders for significant monetary penalties," said U.S. Attorney Bogden. "We are confident that these prosecutions have sent a significant message to the medical and legal community that obstructing a federal criminal investigation is a serious felony offense which can lead to criminal charges."
Howard Awand, 65, of Vevay, Indiana, was sentenced by Senior U.S. District Judge Justin L. Quackenbush. Awand pleaded guilty in March to one count of misprision of felony. Awand was also convicted in Las Vegas in January of four counts of Willful Failure To Pay Tax, and was sentenced in April to four years in prison, one year of supervised release, and ordered to pay approximately $2.5 million in restitution.
According to the Plea Agreement, Awand admitted that he was a medical consultant in Las Vegas and worked with local lawyers and doctors on personal injury cases. Two of the local doctors with whom Awand had business and financial relationships were Las Vegas spine surgeons Dr. Mark Kabins and Dr. John Thalgott. On August 3, 2000, Dr. Kabins assisted Dr. Thalgott in performing spine surgery on patient Melodie Simon. Simon became paralyzed from complications that arose after the surgery. Dr. Kabins knew that experts could say that he fell below the standard of care in his treatment of Simon, and that he could be sued. To avoid being sued, Dr. Kabins asked Howard Awand to set up a meeting with Simon's Las Vegas attorney, Noel Gage, to persuade Gage not to sue him or Dr. Thalgott.
In the spring of 2001, Awand introduced himself to Gage and explained the services he performed as a medical consultant. Gage agreed to pay Awand a referral fee of 40% of legal fees earned by Gage on any case Awand referred to Gage. In the summer of 2001, Awand told Gage that he should not sue Drs. Kabins and Thalgott because the anesthesiologist, Dr. Burkhead, was responsible for Simon's injury. At that time, Gage rejected Awand's suggestions. In September 2001, however, Awand referred a lucrative personal injury case to Gage. Immediately thereafter, Gage shifted his focus from building a medical malpractice case against Dr. Kabins to building a medical malpractice case against Dr. Burkhead.
During the fall of 2001, Awand arranged for Gage to meet Drs. Kabins and Thalgott and to hear Dr. Kabins' explanation of how Dr. Burkhead could have injured Simon. At the beginning of the meeting, Gage obtained the assurance that each person would keep the meeting secret. Gage told Kabins and Thalgott that he would not sue them if they agreed to testify against Dr. Burkhead. In January 2002, at Gage's direction, Awand caused Dr. Kabins to write a report blaming Dr. Burkhead for injuries to Simon, which report concealed information that could have been used to show that Kabins may have been at least partially responsible for the injuries. Awand also edited the report. In May 2002, Gage conducted depositions of Drs. Kabins and Thalgott. In the deposition, Dr. Kabins testified falsely that he had not spoken with Gage before the deposition and he failed to disclose information that could have been used to show that he was at least partially responsible for Simon's injuries. Awand knew that Gage and Kabins had committed mail fraud by sending Dr. Kabins's report and false deposition testimony to an expert to be used to build a case to sue Dr. Burkhead. Awand concealed this information and did not report it to proper authorities. Later, Gage sued Dr. Burkhead and others for malpractice, but did not sue Drs. Kabins or Thalgott. Awand believed that Gage's decision not to sue Drs. Kabins and Thalgott was influenced in part by Gage's desire to receive case referrals from Awand.
Noel Gage pleaded guilty on February 23, 2010, to felony obstruction of justice charges and was sentenced on June 3, 2010, to three years probation, 90 days of home confinement, a $25,000 fine, and must also pay $702,600 to former client Melodie Simon.
Mark Kabins M.D. pleaded guilty on November 23, 2009, to one count of misprision of felony, and was sentenced on January 14, 2010, to five years of probation, six months of home confinement, 250 hours of community work service, and ordered to pay $3.5 million in restitution.
The cases were investigated by the FBI, IRS Criminal Investigation, and the Nevada Attorney General's Office, and prosecuted by Assistant United States Attorneys Steven W. Myhre and Daniel R. Schiess.