Local spine surgeon appears set to plea in ongoing case

Local spine surgeon Mark Kabins is poised to plea out in the case in which he's accused of conspiring with attorney Noel Gage and consultant Howard Awand to defraud a patient of their "honest services."

From the looks of Senior U.S. District Judge Justin Quackenbush's Nov. 9 order, there is a plea bargain agreement filed under seal. Quackenbush set a 1 p.m. hearing on Nov. 23 for a pretrial conference and "hearing on the Kabins plea matter."

Kabins was indicted on March 4 in an eight-count indictment charging conspiracy, mail fraud and honest services fraud. Federal prosecutors charged he operated on a patient, Melodie Simon, then conspired with another doctor, John Thalgott, to blame an anesthesiologist for her subsequent paralysis.

Gage sued anesthesiologist Dan Burkhead and obtained $2 million. He didn't sue Kabins or Thalgott, although he originally told Simon her case could be worth as much as $10 million.

Gage went to trial first in 2008 and Thalgott, a government witness with immunity, described a secret meeting with Kabins and Gage in which they plotted how to shift the blame.

When Gage wanted to call Kabins to the stand to rebut Thalgott, Quackenbush ordered the government to give the surgeon immunity. Federal prosecutors Steve Myhre and Dan Schiess refused, so Quackenbush dismissed the charges against Gage, and later Awand, the alleged mastermind.

An appellate court ruled Quackenbush, a senior judge from Spokane, Wash., was wrong and reinstated the charges. The three men's cases were consolidated.

The alleged conspiracy included inflating medical costs, protecting doctors from malpractice lawsuits, and sharing kickbacks from legal settlements. Doctors who cooperated were not sued; lawyers who cooperated were referred lucrative personal injury cases, the government alleged.

Patients and personal injury clients suffered.

Has Kabins agreed to testify against Gage and Awand? Or anyone else? Calls to Kabins' attorney David Chesnoff on Friday were not returned.

Aside from whatever punishment Quackenbush might set for Kabins, he'll also have to deal with disciplinary action from the Nevada State Medical Board. He might also lose privileges in local hospitals.

Thalgott and neurosurgeon Ben Venger cooperated with federal authorities and testified against Gage with immunity from prosecution.

Venger testified he referred patients to Awand in exchange for nearly $500,000 in kickbacks and for protection from malpractice lawsuits. The medical board put Venger on probation for 36 months, reprimanded him and fined him $5,000 plus the costs of the investigation. No malpractice was alleged, merely greed.

The board has not taken any action against Thalgott. A whistle-blower protection bill approved by the Legislature blocked licensing boards from punishing doctors who cooperate with investigations into medical wrongdoing. It's not clear whether the new law blocks action against Thalgott.

Kabins is no whistle-blower. He's pleading, apparently making some admission, unless he pleads no contest.

Before he was indicted in March, I'd heard Kabins' attorney approached the government looking for a sweet deal, asking for a pretrial diversion program. That would have meant the charges would have been dismissed after a period of probation. But the surgeon didn't want to testify against the others.

Whatever the plea bargain is, I suspect it's going to be a bit tougher than pretrial diversion.

I predict the mob of supporters who accompanied Kabins to court in March (and tried to get in the way of news photographers doing their job) will not show up for the Nov. 23 plea.

His friends who protected him that day and believed him when he said he was innocent may be shocked at his plea.

The doctors and lawyers who stood by him in a show of support have to ask themselves: Did I do anything illegal? If so, is Kabins going to give it up?

Jane Ann Morrison's column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275. She also blogs at lvrj.com/blogs/morrison.