Exclusion of “device” as a statutory element of medical fraud under 18 USCA § 1347(a) despite being included in prosecution

of US vs. Naushad, the U.S. Court of Appeals for the Eighth Circuit upheld the convictions of Dr. Abdul Naushad and Dr. Waziha A. Naushad on medical fraud and conspiracy charges. The Naushads injected patients with non-FDA-approved orthovisc and falsely claimed to Medicare that they were using FDA-approved orthovisc. The Naushad brothers argue that following jury orders and indictment, the government must prove that unapproved orthovisks qualify as “devices” under the Federal Food, Drug, and Cosmetic Act (“FDCA”). bottom. However, appeals courts argued that the sufficiency of the evidence in support of a conviction should be assessed on the basis of the statutory elements of the crime charged rather than on jury misdirection. rejected. Even though the “device” factor was significant, the Court of Appeals found that the government presented sufficient evidence that Orthovisc met his definition of a device under the FDCA. The court also dismissed other grounds for the Naushads’ retrial, including the exclusion of certain evidence or instructions.

The Nausyas failed to provide any legal authority to support their claim that prosecution may require proof of factors in addition to those required by law. Such arguments only undermine the attorney’s credibility and may harm the interests of the client during the appeal process.

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