A federal judge has taken the unusual step of tossing out a jury’s conviction of a prominent Maryland doctor for submitting millions of dollars in fraudulent insurance claims for COVID-19 tests.

In a detailed, 90-page ruling, James K. Bredar, chief judge of the U.S. District Court for Maryland, said the government did not meet the bar to convict Dr. Ron Elfenbein, an Arnold emergency room doctor who was charged with submitting $15 million in fraudulent tests at urgent care centers he operated.

He was among several people charged by the U.S. Department of Justice with fraud during the coronavirus pandemic, but the first to be convicted of testing-related fraud at trial.

Bredar noted that the move was rare but said the government didn’t present enough evidence to conclude beyond a reasonable doubt that Elfenbein, an early proponent of testing for the deadly infection, was improperly “upcoding” those tests and billing Medicare and other insurers for reimbursement he wasn’t due.

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“In this context, it is not a criminal offense to take advantage of loose definitions or an explicit loophole any more than is it to do so when citizens prepare their tax returns,” said Bredar in the opinion. “Citizens, including healthcare providers, cannot be held to criminal account for doing only what a technical regulation is reasonably read to permit, even if to do so would seem to benefit them excessively.”

Elfenbein had not been practicing in any emergency department since he was charged last year with five counts of health care fraud for testing done through his company, Drs ERgent Care, which operated First Call Medical Center and Chesapeake ERgent Care in Anne Arundel and Prince George’s counties.

He also was awarded a temporary contract to operate an urgent care center that offered testing at Baltimore-Washington International Thurgood Marshall Airport. For that work, he was awarded a citation by then-Gov. Larry Hogan.

Drs ERgent Care is no longer operating. Elfenbein’s attorney, Martin S. Himeles Jr., said he expects Elfenbein to seek to have his medical license fully restored and to return to emergency medicine. He has had privileges at various Eastern Shore and Southern Maryland hospitals.

The Maryland Board of Physicians still lists his license as active, though it noted in August, at the time of his conviction, that his enrollment in the Maryland Medicaid Program was terminated. Elfenbein had faced up to 10 years in prison.

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“We are delighted that our client, who we have known from the outset was innocent, has now had his innocence vindicated,” Himeles said.

“He’s been living under the cloud of the government’s charges and investigation for too long, and the court’s opinion in a very clear, comprehensive and thorough way finds the evidence presented by government simply did not establish his guilt,” he said. “He can now go back to what he loves to do, that is, helping patients who need his assistance and compassion and support.”

A new trial will not automatically be granted. The government would have to file an appeal and seek a new trial.

Appearing to cast doubt on the move for a new trial is Rod Rosenstein, who was a former U.S. attorney from Maryland before becoming assistant attorney general in the Trump administration. He was not involved in the Elfenbein case.

“Judge Bredar’s opinion is a tour de force,” he said. “This case sends a strong message to leaders of the U.S. Attorney’s Office and the Justice Department’s Criminal Division that they should be skeptical about prosecuting people for allegedly violating vague federal regulations. Sometimes cases are better handled with civil enforcement.”

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The U.S. attorney’s office had no comment.

Baltimore Banner reporter Justin Fenton contributed to this article.

Meredith Cohn is a health and medicine reporter for The Baltimore Banner, covering the latest research, public health developments and other news. She has been covering the beat in Baltimore for more than two decades. 

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