In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐2728
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JASWINDER RAI CHHIBBER,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11‐CR‐00119‐1— Suzanne B. Conlon, Judge.
ARGUED APRIL 11, 2013 — DECIDED FEBRUARY 3, 2014
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Dr. Jaswinder Rai Chhibber was
charged with eight counts of making false statements relating
to health care matters, in violation of 18 U.S.C. § 1035, and
eight counts of health care fraud, in violation of 18 U.S.C.
§ 1347. A jury found him guilty of four counts of making false
statements and five counts of health care fraud. He appeals,
2 No. 12‐2728
challenging several evidentiary decisions made by the district
court. We affirm.
I.
Chhibber was an internist who operated the Cottage Grove
Community Medical Clinic (hereafter the “Clinic”), a walk‐in
medical office on the south side of Chicago. For patients who
had insurance or were covered by Medicare, Chhibber ordered
an unusually large volume of diagnostic tests, including
echocardiograms, electrocardiograms, pulmonary function
tests, nerve conduction studies, carotid Doppler ultrasound
scans and abdominal ultrasound scans. Chhibber owned the
equipment to perform these tests and his staff performed them
at the Clinic according to his orders. The government asserted
that Chhibber obtained reimbursements for the tests from
insurers by presenting claims that contained false and mislead‐
ing diagnostic codes to justify the tests. He also supported the
claims by recording fake symptoms and sham diagnoses in his
patients’ medical charts.
At trial, the government presented witnesses who had
worked for Chhibber, patients who saw him, and undercover
agents who presented themselves to the Clinic as persons
needing medical services. This testimony revealed that
Chhibber was in the habit of ordering diagnostic tests for his
patients regardless of any symptoms they exhibited or re‐
ported. Chhibber’s former employees testified that he often
ordered tests before he even arrived at the office, based on
phone calls with staff in which he inquired about little more
than the names of the patients’ insurers and when the patients
had last been given tests. The employees performed the tests
No. 12‐2728 3
themselves with little training, and the results were not
reviewed by specialists. Indeed, Chhibber refused to provide
formal training, citing cost as a reason; instead he required
employees to train each other. Training for some employees
lasted only minutes. To the extent that the tests were reviewed
by anyone, Chhibber himself performed the review even
though he was not board certified in any medical specialty or
subspecialty. In usual practice, though, the tests were not
reviewed at all. Chhibber’s patients and the undercover
officers who posed as patients testified that they did not report
the symptoms that Chhibber recorded in their charts and that
Chhibber did not discuss with them the results of tests or the
serious medical conditions that he attributed to them.
The government also presented testimony from an internist,
Dr. Daniel Herdeman, and from two statisticians.1 The govern‐
ment initially sought to qualify the statisticians as experts, and
sought to introduce charts demonstrating that Chhibber
performed various tests on his patients with much greater
frequency than other internists in the same geographical area.
Chhibber objected to qualifying the statisticians as experts and
also objected to the admission of charts comparing the fre‐
quency of Chhibber’s testing to the frequency of testing by his
peers. He contended that the statisticians had used a peer
group that was not truly comparable because they had not
1
The Blue Cross Blue Shield statistics were presented by Dr. Julia Bienias,
a statistician who had worked for the insurer. Diana Barany, a data analyst
manager who was employed by a Medicare program contractor, presented
the Medicare statistics. For the sake of simplicity, we will refer to these two
witnesses as the statisticians.
4 No. 12‐2728
considered whether the physicians in that group owned testing
equipment as Chhibber did. Chhibber argued that because an
unknown number of those doctors in the peer group could
simply be referring patients out for the same amount of testing
at other facilities, the comparison was neither accurate nor fair.
The district court agreed and declined to qualify the statisti‐
cians as experts, and also declined to allow the government to
present the charts comparing Chhibber’s frequency of perform‐
ing tests to the frequency of other doctors.
But the court did allow the statisticians to present summary
charts containing only the percentages of Chhibber’s patients
who received certain tests or diagnoses, without any compari‐
son to a peer group. Exhibit 801X portrayed the percentage of
Chhibber’s patients who were insured by Blue Cross Blue
Shield of Illinois and who received (1) a carotid Doppler
(60.47%); (2) a transcranial Doppler (38.74%); (3) an electrocar‐
diogram (34.55%); (4) an echocardiogram (55.50%); (5) a nerve
conduction study (18.32%); (6) a pulmonary function test
(59.69%); and (7) an abdominal ultrasound (46.07%). A
corresponding chart, Exhibit 803X, showed the percentage of
Chhibber’s Blue Cross patients receiving particular diagnoses:
(1) cardiac murmurs (63.09%); (2) shortness of breath and chest
pain (62.04%); and (3) hypertension (33.51%). Similar charts
were entered into evidence for patients of Chhibber who were
covered by Medicare. Exhibit 806X revealed that large numbers
of Chhibber’s Medicare patients received (1) a carotid Doppler
(64.79%); (2) a transcranial Doppler (30.75%); (3) an electrocar‐
diogram (48.59%); (4) an echocardiogram (62.68%); (5) a nerve
conduction study (21.13%); and (6) a pulmonary function test
(73.24%). Exhibit 808X portrayed the percentage of Chhibber’s
No. 12‐2728 5
Medicare patients receiving particular diagnoses: (1) cardiac
murmurs (62.21%); (2) shortness of breath and chest pain
(66.20%) and (3) hypertension (50.70%).
Chhibber objected to the introduction of these four exhibits
on the grounds that they were prejudicial and irrelevant. He
protested that it was improper for the government to argue
that a high percentage for a particular procedure or diagnosis
implied fraud unless someone testified that the number was
comparatively high, and that the jury could not know what the
raw numbers meant without an appropriate comparison. He
also contended that the percentages distorted reality because
they were calculated on a per patient basis rather than a per
visit basis. Such an assessment did not account for occasions
where a single patient came in for twenty or thirty visits and
received only one test. The court overruled the objection and
allowed the charts to come in under Federal Rule of Evidence
1006, allowing the statisticians to testify as summarizers of
voluminous records. The jury, as we noted above, convicted
Chhibber on some of the counts and acquitted him on others.
He appeals.
II.
On appeal, Chhibber contends that the trial court improp‐
erly admitted the four exhibits described above. He also argues
that the government should have been required, as a matter of
law, to present expert testimony that the treatment Chhibber
provided was medically unnecessary. Finally, he contends that
the cumulative effect of the trial court’s errors deprived him of
the right to a fair trial.
6 No. 12‐2728
A.
We review the courtʹs decision to admit or exclude evidence
for abuse of discretion. United States v. Simon, 727 F.3d 682, 696
(7th Cir. 2013); United States v. Thornton, 642 F.3d 599, 604 (7th
Cir. 2011). See also United States v. Isaacs, 593 F.3d 517, 527 (7th
Cir. 2010) (reviewing a district court’s decision to admit
summary charts into evidence under Rule 1006 for abuse of
discretion). Chhibber contends that, once the district court
properly excluded the proposed peer group evidence, the
remaining charts showing how often Chhibber performed
certain tests and made particular diagnoses were irrelevant
and prejudicial. Without a point of comparison, Chhibber
maintains that the jury had no basis for inferring fraud from
these numbers. He also complains that the numbers were
misleading because they were calculated on a per‐patient basis
rather than a per‐visit basis. The numbers were prejudicial, he
claims, because the government argued that his testing
numbers were so high that they reflected an “impossible
volume” without giving the jury anything to compare them to.
Finally, he contends that the statistics were the sole basis for
any claim of Medicare fraud against him because no Medicare
patients testified at trial. The numbers alone, he maintains,
must have been prejudicial because there was no other basis on
which to convict him of Medicare fraud.
The district court did not abuse its discretion in admitting
these four summary charts. First, we note that Chhibber does
not contend that the numbers were anything other than an
accurate summary of his billing and medical records. That is,
the charts accurately portrayed the data culled from his
records, and were not misrepresented to the jury as anything
No. 12‐2728 7
other than what they actually were. His objection that the
numbers were calculated on a per‐patient rather than a per‐
visit basis, for example, was a point that he could argue to the
jury, and he was free to argue that the numbers lacked signifi‐
cance for this reason. But the numbers were not portrayed to
the jury as per‐visit when in fact they were per‐patient; all of
the percentages were accurate summaries of Chhibber’s own
records. See Isaacs, 593 F.3d at 527‐28 (summary exhibits which
accurately portray the underlying data are admissible so long
as the proponent complies with the dictates of Rule 1006).
More importantly, there was evidence in the record that
provided a point of comparison for the jury. Although the
government’s peer group statistics were excluded because the
court found that the government’s proposed peer group was
not comparable, the government presented the testimony of
Dr. Herdeman, an internist who was qualified as an expert in
the field of internal medicine and diagnosis. R. 249, Tr. at 384.
Chhibber reserved his right to object to Dr. Herdeman’s
expertise “as to the giving of tests,” but subsequently he did
not object to extensive testimony by Dr. Herdeman regarding
how often an internist encounters patients with the conditions
diagnosed by Chhibber and how often an internist typically
orders the tests performed by Chhibber.
Dr. Herdeman’s testimony provided an ample basis for the
jury to evaluate the statistical summaries. Dr. Herdeman is a
board certified internist who had been practicing medicine in
a variety of settings for twenty‐nine years at the time of the
trial. He had worked for approximately fourteen years at the
Swedish American Medical Group in Rockford, Illinois,
serving a population that included both middle class and
8 No. 12‐2728
impoverished patients of all races and adult age groups. Prior
to that, he worked at a community health clinic where he was
both an internist and medical director, supervising other
internists, family doctors and pediatricians. The community
health clinic served a patient population that was at or below
the poverty level, again spanning all racial groups and age
ranges. Prior jobs provided him with similar experience,
practicing internal medicine, and supervising other internists.
In addition, for approximately twenty years, he was a clinical
instructor at the University of Illinois medical branch in
Rockford, Illinois. Dr. Herdeman’s background gave him
extensive experience with patients similar to those treated by
Chhibber in the Clinic.
Dr. Herdeman testified that echocardiograms, electrocar‐
diograms, carotid Doppler scans, transcranial Doppler scans,
pulmonary function tests, and nerve conduction studies are not
routine screening procedures but are specialized tests per‐
formed by persons with special training. Dr. Herdeman stated
that a doctor would not order any of these specialized tests
without examining a patient because only certain conditions
would justify performing each test. Based on his training and
experience, he expected that an internist would order (1) one
or two echocardiograms per month; (2) approximately one or
two electrocardiograms per week, or approximately 2% to 5%
of his total patient population; (3) ten to fifteen carotid Doppler
scans per year; (4) ten to twelve pulmonary function tests per
year; and (5) five to eight nerve conduction studies per year.
Dr. Herdeman had never ordered a transcranial Doppler scan
because none of his patients had ever needed one. In his
experience in working with older patient populations and
No. 12‐2728 9
more impoverished patients, he testified that the numbers
were very similar, with only marginal increases. Dr. Herdeman
also explained that echocardiograms, carotid Doppler scans,
transcranial Doppler scans, pulmonary function tests, and
nerve conduction studies were not typically performed in an
internist’s office because most internists are not trained to
perform the test, and the small number of tests needed would
not justify hiring a trained technician. In his experience,
patients needing these tests were referred to hospitals that had
the personnel and equipment necessary to perform the tests.
Dr. Herdeman also explained that he did not feel qualified as
an internist to interpret the images generated by an echocardio‐
gram, carotid Doppler scans, transcranial Doppler scans,
pulmonary function tests, and nerve conduction studies.2
Typically, cardiologists review the raw data from echocardio‐
grams, radiologists interpret the data from Doppler scans,
pulmonologists review pulmonary function test data, and
neurologists review the results of nerve conduction studies.
For each type of test, the appropriate specialist generates a
report for the patients’ internists.
The government also questioned Dr. Herdeman about
Chhibber’s patient progress notes for the patients where fraud
was alleged. Dr. Herdeman testified that the notes did not
contain the information that he would expect to find for
persons given the diagnoses that Chhibber assigned to these
patients. For example, for a patient with a heart murmur, Dr.
Herdeman expected to see answers to a number of questions
2
The exception to this rule was electrocardiograms. Dr. Herdeman testified
that internists generally are trained to interpret electrocardiograms.
10 No. 12‐2728
about the patient’s symptoms during various activities, and
details about the sound of the murmur when the patient was
in a variety of positions. He would expect to see questions
about prior events and diagnoses, medical history, and an
indication that the condition was discussed with the patient.
For a patient experiencing chest pain, he would expect to see
answers to numerous follow‐up questions to determine if the
chest pain was caused by a benign condition or a more serious
cardiac issue. Similarly for a patient with carotid bruit, an
unusual sound in the carotid arteries indicating a possible
dangerous blockage, Dr. Herdeman would expect a number of
follow‐up questions to be answered in the patient’s chart. In
the case of one twenty‐eight year old patient where Chhibber
diagnosed carotid bruit, Dr. Herdeman noted that this was
extremely unusual and worrisome in a patient this age, that he
would ask certain questions and record the answers, and that
he would discuss this condition with the patient because of the
potentially serious health consequences of the conditions it
might indicate. In another patient that Chhibber noted as
suffering from abdominal pain, Dr. Herdeman remarked that
he would expect to see (and did not see on the patient’s chart)
answers to a number of follow‐up questions to determine the
nature and seriousness of the pain. For at least four patients,
the charts indicated in the results of an echocardiogram the
absence of “intracranial shunts.” Given that the tests were
ultrasounds of the heart, a finding of no shunts in the cranium
(the head) of the patient was a nonsensical notation. Each of
the charts was missing critical information about the poten‐
tially serious symptoms that the patients purportedly experi‐
enced.
No. 12‐2728 11
Contrary to Chhibber’s claim, Dr. Herdeman provided an
adequate basis for comparison and did not function as a “peer
group of one.” He was an expert, who was testifying about his
experiences both as an internist and a supervisor of other
internists for more than twenty‐nine years. Chhibber did not
object to any of Dr. Herdeman’s testimony regarding the
frequency with which an internist would order these tests. And
as should now be obvious, Chhibber ordered the tests for his
patients at considerably higher rates than internists generally
do, and he did so without evaluating the patients for need,
with staff that was poorly trained to administer the tests, and
without the expertise to properly evaluate the results. This
evidence was relevant to corroborate the claims of Chhibber’s
actual patients and the undercover officer‐patients that they
did not report (or display) to Chhibber the symptoms he
recorded on their charts to justify the tests he ordered. The
evidence also demonstrated that the tests normally would not
have been ordered without thorough examinations of the
patients, and that the errors in Chhibber’s notes were not
incidental or typographical but were part of a pervasive fraud
scheme. This evidence also corroborated the testimony of
Chhibber’s former employees who testified that Chhibber
tested patients in large numbers without first examining them
and without ever interpreting the results of the tests. In short,
the evidence was relevant to proving the government’s case
and was not presented in the vacuum that Chhibber suggests.
Instead, the charts were presented in the context of Dr.
Herdeman’s expert testimony, as well as in the framework of
the testimony of patients (both real and undercover) and
former employees who attested to their experiences with
12 No. 12‐2728
Chhibber’s practices. There was no abuse of discretion in
admitting the challenged summary charts.
B.
Chhibber next argues that the government should have
been required to present expert testimony to prove that the
tests he provided were not medically necessary and that his
diagnoses were incorrect. He asserts that the question of
whether expert testimony is required to sustain a conviction
for the provision of medically unnecessary care under 18
U.S.C. §§ 1347 and 1035 is one of first impression. We will
overturn a verdict for insufficiency of the evidence only if, after
viewing the evidence in the light most favorable to the govern‐
ment, the record is devoid of evidence from which a rational
trier of fact could find guilt beyond a reasonable doubt. United
States v. McIntosh, 702 F.3d 381, 385 (7th Cir. 2012), cert. denied,
133 S. Ct. 1484 (2013); United States v. Vaughn, 585 F.3d 1024,
1028 (7th Cir. 2009), cert. denied, 130 S.Ct. 3385 (2010); United
States v. Olson, 450 F.3d 655, 664 (7th Cir. 2006).
Chhibber was convicted of four counts of false statements
under section 1035, and five counts of health care fraud under
section 1347. Section 1035 provides, in relevant part:
Whoever, in any matter involving a health care
benefit program, knowingly and willfully… (2)
makes any materially false, fictitious, or fraudulent
statements or representations, or makes or uses any
materially false writing or document knowing the
same to contain any materially false, fictitious, or
fraudulent statement or entry, in connection with
the delivery of or payment for health care benefits,
No. 12‐2728 13
items, or services, shall be fined under this title or
imprisoned not more than 5 years, or both.
18 U.S.C. § 1035(a)(2). Section 1347 provides, in relevant part:
Whoever knowingly and willfully executes, or
attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent
pretenses, representations, or promises, any of the
money or property owned by, or under the cus‐
tody or control of, any health care benefit pro‐
gram,
in connection with the delivery of or payment for
health care benefits, items, or services, shall be fined
under this title or imprisoned not more than 10
years, or both. If the violation results in serious
bodily injury (as defined in section 1365 of this title),
such person shall be fined under this title or impris‐
oned not more than 20 years, or both; and if the
violation results in death, such person shall be fined
under this title, or imprisoned for any term of years
or for life, or both.
18 U.S.C. § 1347(a).
Although neither statute refers expressly to the provision
of medically unnecessary treatment, the indictment charged
that Chhibber violated these statutes by ordering medically
unnecessary tests for patients covered by health care benefit
programs and then recording false diagnosis codes in those
patients’ charts and on reimbursement claim forms in order to
14 No. 12‐2728
justify giving the tests. The indictment further alleged that, as
part of this scheme, Chhibber ordered tests without first
examining patients, that he sought reimbursement for the tests
even when he failed to review the results, that he ordered tests
on patients he had examined but whose signs and symptoms
did not indicate that the tests were medically necessary, that he
documented false and fictitious signs and symptoms in
patients’ medical charts to provide written support for the tests
ordered, that he and his staff (at his direction) added notes to
patients’ charts weeks or months after tests had been per‐
formed to make it appear as if he had reviewed the results of
the tests when he had not in fact done so, and that he caused
insurance claims to be filed for medically unnecessary tests.
The individual counts of the indictment charged Chhibber with
submitting claims to Blue Cross Blue Shield for tests performed
on seven different patients3 when those claims falsely indicated
that the patients suffered from particular medical symptoms
(in violation of section 1347), and with noting false diagnoses
in the medical charts of seven patients (in violation of section
1035).
We need not decide as a matter of law whether expert
testimony is required on the issue of medical necessity because
the government did in fact provide expert testimony from Dr.
Herdeman regarding what conditions justified particular tests.
Dr. Herdeman testified that each test at issue was not a general
3
Although there were seven different patients, there were eight counts for
each statute (for a total of sixteen counts) because Chhibber was charged
with submitting false claims and falsifying records twice for one of the
seven patients.
No. 12‐2728 15
screening tool but was used only when patients exhibited
particular signs and symptoms that required further investiga‐
tion. Absent those particular signs and symptoms, Dr.
Herdeman stated, the tests were not medically necessary. Dr.
Herdeman also testified that he would never order any of these
tests without first examining a patient to determine the need
for testing. See United States v. Hunt, 521 F.3d 636, 645 (6th Cir.
2008) (evidence adequate to prove health care fraud under
section 1347 where claims were submitted to insurer for tests
that were ordered without in‐person examination of patient,
and where government’s expert testified that an examination
of the patient would be required to determine medical neces‐
sity of the tests); United States v. Morgan, 505 F.3d 332, 341‐42
(5th Cir. 2007) (a reasonable jury could conclude that physician
violated section 1347 when she signed prescriptions for
durable medical equipment that was billed to Medicare
without ever examining the patients). Dr. Herdeman explained
what the medical records would look like in the presence of a
legitimate examination for the serious symptoms and condi‐
tions that Chhibber recorded on his patients’ charts, and he
testified that the test results would be reviewed by specialists
and discussed with the patients, none of which happened in
any of the charged counts. The government also provided
corporate representatives from Blue Cross and Medicare who
defined medical necessity and described how claims would be
paid. The corporate representatives verified that they would
not pay for claims founded on fictitious or fraudulent diagno‐
ses.
And there was ample evidence from the patients and
undercover officers that the patients did not report the symp‐
16 No. 12‐2728
toms recorded by Chhibber or that he ordered tests without
examining the patients at all. For example, for the section 1347
counts, Chhibber submitted claims to Blue Cross for (1) an
electrocardiogram and pulmonary function test for an under‐
cover agent which Chhibber justified by claiming that the
agent suffered shortness of breath, a symptom that the agent
neither reported nor displayed; (2) an echocardiogram and a
transcranial Doppler scan for another undercover agent which
Chhibber justified by claiming that the agent had heart
murmurs, syncope and collapse, when the agent had never
reported syncope and collapse and when Chhibber never
mentioned the alleged heart murmur to the agent and never
noted any proper investigation in the chart; and (3) an electro‐
cardiogram, a pulmonary function test, an echocardiogram and
a carotid Doppler for a twenty‐eight year‐old patient who
came to Chhibber’s office to obtain a nursing school registra‐
tion physical, tests Chhibber justified by claiming the woman
had complained of chest pain, shortness of breath and dizzi‐
ness, symptoms she never reported. In addition, Chhibber
diagnosed this patient with a heart murmur and a carotid
bruit, both very serious conditions (especially for a twenty‐
eight year‐old patient) and yet never mentioned these diagno‐
ses to the patient and never told her the results of any of these
tests. In combination with Dr. Herdeman’s testimony and that
of the corporate representatives, this evidence was more than
adequate to support the conviction on the section 1347 counts.
As for the section 1035 claims, Chhibber documented these
made‐up medical symptoms and diagnoses in his patients’
charts in order to backstop his claims for benefits from Blue
Cross Blue Shield. United States v. Natale, 719 F.3d 719, 742 (7th
No. 12‐2728 17
Cir. 2013), petition for cert. filed, – U.S.L.W. – (Dec. 20, 2013) (No.
13‐744) (setting forth the elements that must be proved for a
conviction for false statements relating to health care matters
under section 1035(a)(2)). For the agents mentioned above,
Chhibber recorded shortness of breath when the agent was not
suffering from and had not reported shortness of breath.
Chhibber recorded syncope (fainting) and collapse for a
different agent who was not suffering from and had not
reported these symptoms. For the twenty‐eight year‐old
woman, he recorded chest pain, dizziness and shortness of
breath in her chart when she neither reported nor exhibited
these conditions. The evidence was similar on the other counts
of conviction. Deciding whether to credit simple factual
testimony from these witnesses, testimony that conflicted with
Chhibber’s written records, required no expert testimony and
was well within the province of the jury. On appeal, we do not
reweigh the evidence or assess witness credibility. United States
v. Wasson, 679 F.3d 938, 949 (7th Cir. 2012), cert. denied, 133 S.
Ct. 1582 (2013). See also United States v. Carraway, 612 F.3d 642,
645 (7th Cir. 2010), cert. denied, 131 S. Ct. 1025 (2011) (credibility
determinations are best handled by the trier of fact, not the
appellate court). This evidence was more than sufficient to
sustain the convictions on the section 1035 counts.
III.
Given that there were no errors in the district court’s
rulings, we need not consider Chhibber’s claim of cumulative
error. We have reviewed his other claims and find no merit in
them. In sum, the court did not err in admitting charts that
accurately summarized voluminous records, records that were
relevant to the government’s case. We need not decide whether
18 No. 12‐2728
expert testimony was necessary to prove the question of
medical necessity because the government did provide an
expert who explained the symptoms, diagnoses, and investiga‐
tions that would justify the tests that Chhibber ordered. In light
of the wealth of evidence that Chhibber sought reimbursement
for tests he ordered in the absence of any justification and the
evidence that he fabricated patient charts to justify his actions,
the judgment of the district court is
AFFIRMED.