Six weeks ago, Johnson & Johnson agreed to pay $9.75 million to the federal and state governments to settle allegations that it illegally gave a Massachusetts surgeon free medical devices for operations he performed on patients overseas to encourage him to use more of its products at his own hospital.
At the time, federal prosecutors and a lawyer for a former J&J employee who blew the whistle on the alleged kickbacks refused to identify the spine surgeon or his employer.
Now a court filing by the whistle-blower’s attorney has identified the physician as Dr. Tony Tannoury, the longtime head of spinal surgery at Boston Medical Center ― the same doctor who drew national headlines two years ago for leaving a patient on the operating table in 2016 while he ducked out to take a nap.
The Massachusetts Board of Registration in Medicine reprimanded Tannoury in 2021 for going to eat in his parked car that November night, falling asleep, and missing the procedure, which had to be performed by a chief resident, according to a consent order Tannoury signed.
Fast forward to last Friday. In a filing in US District Court in Boston, a lawyer for Aleksej Gusakovs, a former J&J sales representative, said that Tannoury, 55, was the surgeon who received more than $100,000 in free spinal implants and tools described in a 2017 whistle-blower suit that Gusakovs filed against J&J.
A J&J subsidiary, DePuy Synthes, admitted in a settlement in January that former sales representatives provided the equipment from at least July 2013 through February 2018 to a Massachusetts surgeon who used it in operations he performed in six Middle Eastern countries, outside his usual practice. Neither the surgeon nor his employer were identified.
The recent court filing said that “several times a year, Dr. Tannoury would travel to foreign countries in order to perform surgeries for personal financial gain.”
Tannoury could not be reached for comment this week. His lawyer, Thomas Butters of Boston, insisted that Tannoury “received no free products supplied by J&J for his surgeries. It was J&J’s responsibility to bill the hospitals for all instruments used. If J&J failed to bill the hospitals for products used during these surgeries, Dr. Tannoury was not aware of this failure, nor did he benefit.”
Tannoury, he added, is a “world-renowned minimally invasive spine surgeon who invented the minimally invasive system and teaches surgeons all around the world on how to perform minimally invasive spinal surgery.”
David Kibbe, a spokesman for BMC, said the hospital “is not involved with Dr. Tannoury’s work in the Middle East, and it is not on behalf of the hospital.” Tannoury is listed on the website of the Chobanian & Avedisian School of Medicine at Boston University, with which BMC is affiliated, as founder and president of Spinal Progress and Innovation for the Near East, although it was unclear whether his operations overseas were related to that group.
Prosecutors contend the free devices were effectively kickbacks intended to make Tannoury loyal to J&J and to encourage him to use more of its surgical equipment on Medicare and Medicaid patients in Massachusetts. The federal Anti-Kickback Statute prohibits companies from giving doctors inducements to use their products in surgeries covered by government insurers.
“A central component of Defendants’ unlawful strategy to defraud Medicare and Medicaid was to target spinal surgeon Dr. Tony Tannoury . . . with kickbacks, knowing that he had the influence and ability to drive sales [of J&J products] within BMC,” said the recent court filing by Gusakovs’ lawyer, Royston Delaney of Boston.
Brian M. Boynton, head of the Justice Department’s civil division, said when the settlement was announced that Medicare and Medicaid patients should expect that medical devices used in operations were chosen “based on quality of care considerations and not on improper inducements from manufacturers.”
Although J&J settled the claims that it defrauded Medicare and Medicaid, Gusakovs is pursuing remaining claims that the company illegally fired him in retaliation for his whistle-blower suit. Neither BMC nor Tannoury was a party to the suit, which named J&J and DePuy as defendants.
BMC said in a statement that it was reviewing the court filing that identified Tannoury but declined to say whether it has taken disciplinary action against him.
Tannoury got in trouble before for escorting a patient into an operating room for emergency ankle surgery in 2016 and leaving before it began. In the consent order he signed, Tannoury admitted he woke up in his car, called the teaching hospital, and was told that a chief resident had performed the operation that he was supposed to oversee. Tannoury didn’t return to the hospital until the following day, and it took nearly five years for the matter to be made public.
The hospital issued him a written reprimand, citing its policy requiring surgeons to be present for critical parts of operations, according to the consent order. Federal law also requires surgeons at teaching hospitals to be present for the key parts of a surgery in order to bill Medicare for the cost of the procedure.
The board fined Tannoury $5,000 and said his conduct eroded “public confidence in the integrity of the medical profession.” It also ordered him to complete five continuing education credits in “professionalism” and to review regulations for supervising residents.
Regarding the alleged kickbacks to Tannoury, the teaching hospital blamed DePuy, as well as Gusakovs’ supervisor, who allegedly helped provide the free equipment.
“Boston Medical Center was a victim of the misconduct of DePuy and a DePuy employee,” the hospital said. Although the hospital has rules for dealing with vendors who sometimes visit operating rooms, the statement added, BMC has “in an abundance of caution, retrained surgical staff about relevant policies, with patient safety continuing to be our utmost priority.”
Prosecutors said in January that J&J gave more than $100,000 in free equipment to the surgeon, but the latest filing alleges it was considerably more.
It says that about every three months, the whistle-blower and his supervisor provided Tannoury with surgical bags containing $250,000 to $500,000 in equipment ― including cages, rods, clamps, and wrenches ― before Tannoury traveled to Bahrain, Kuwait, Lebanon, Saudi Arabia, Qatar, and the United Arab Emirates. Tannoury, who received medical training in Lebanon, performed more than 20 operations on patients during those trips, according to the settlement. Those devices sometimes weren’t available at the hospitals where he operated.
A J&J spokesman did not respond to requests for comment.
Gusakovs brought his suit under the federal False Claims Act, which allows whistle-blowers to sue companies for fraud on behalf of the federal government. Under that law, adopted during the Civil War to combat profiteering by suppliers to the Union Army, Gusakovs received about $1.8 million of the settlement, according to his lawyer, which represents about 19 percent of the total.
Gusakovs’ suit complained about more than alleged kickbacks. He contacted prosecutors in Boston in part because his supervisor at DePuy repeatedly mishandled surgical devices at the hospital, causing Gusakovs to worry that unsterilized equipment might infect patients, according to his claim.
The hospital says no patients were harmed.
Tannoury has directed spine surgery at Boston University’s medical school since 2006, according to his LinkedIn page. A couple of years ago, his practice’s website quoted him as saying he would not offer “any treatment that I would not, or have not, used on my immediate family members and closest friends.”
George Zachos, the state medical board’s executive director, said after Tannoury’s reprimand that the hospital first contacted the agency about the missed surgery in January 2017, two months after it happened. Zachos said that a “number of factors” caused the matter to take more than four years to lead to disciplinary action and that the board has the burden to prove a physician violated regulations or the law by a “preponderance of evidence.”
Dr. James Rickert, founder of the Society for Patient Centered Orthopedics, called the reprimand and $5,000 fine “the proverbial slap on the wrist” and said the discipline came too long after the incident, keeping the public in the dark for nearly five years.
The state medical board can’t comment on whether it is investigating Tannoury in connection with the alleged kickbacks, Ann Scales, a spokesperson for the Department of Public Health, which oversees the board, said Wednesday.
Jonathan Saltzman can be reached at email@example.com.