The court in US v. Wexler, 522 F. 3d 194 – Court of Appeals, 2nd Circuit 2008 dealt with a dermatologist charged with massive Medicare fraud.


In 1992, Wexler began submitting bills to Medicare for treatments he purportedly performed on Barry Abler. As early as April 1992, Wexler submitted bills to Medicare for various dermatological procedures involving the benign excision of a piece of skin between three and four centimeters in length and one-and-a-half centimeters in width. At the same time, Wexler wrote various prescriptions to Abler for certain painkillers, including Dilaudid, Percocet, and Vicodin, which are controlled substances, in addition to Carisprodol, commonly known as “Soma,” which is not controlled. Abler allowed Wexler to fraudulently bill Medicare for various medical procedures that Wexler did not perform and Wexler, in turn, wrote prescriptions for any drugs Abler wanted.


From 1992 until Abler’s death in May 2001, Wexler submitted false bills to Medicare for approximately 1,941 different skin excisions, for which Wexler received approximately $425,000. Abler, in turn, received hundreds of prescriptions for various painkillers, to which he was addicted. Abler complained to his friends that he suffered from TMJ, but there was no evidence that Wexler had examined or treated Abler for TMJ. Wexler also paid Abler between $700 and $750 monthly, and when Abler complained that this was, not sufficient, Wexler offered to write prescriptions for Abler to sell on the street to make extra money.


The court upheld the testimony of Dr. Auerbach on the standard of care for dermatologists.


Dr. Auerbach testified as an expert witness for the Government. With respect to the health care fraud charges, he opined that it was impossible for Wexler to have performed the vast number of excisions for which he billed Medicare and various health insurance companies. With respect to the controlled substance distribution charges, his testimony described the scope of medical care provided by those who engage in the practice of dermatology. When questioned as to whether treatments for TMJ, depression, anxiety, and lower back pain were “within the standard of care provided by dermatologists,” Auerbach consistently answered “no.”


Testifying specifically about the treatment of TMJ, Auerbach stated: “It is not part of dermatology. Dermatology is skin, hair, nails. It is not joints.” Treatment for anxiety disorder by a dermatologist, according to Auerbach, would “do the patient a disservice, but may be worse than [treatment for] TMJ.” Auerbach testified that a dermatologist treating for depression would also do the patient a disservice “except this could get even more serious than TMJ or anxiety in that it would lead to a patient harming himself or maybe other people.” He also opined that “[d]ermatologists don’t treat low back pain.”