New Evidence Upends Haim Trial; New Momentum for Whistleblower

New evidence may improve Dr. Eithan Haim’s chance of prevailing against the Department of Justice (DOJ), which sued the surgeon after he exposed Texas Children’s Hospital’s (TCH) secret transgender program.

The DOJ indicted Haim on four felony HIPAA violations in May, more than a year after Haim leaked redacted medical records proving that TCH had continued performing transgender medical interventions on children after claiming to shut down their transgender program in March 2022.

If convicted, Haim could face up to 10 years in prison and $250,000 in fines.

For a detailed history of the case, check out the Daily Citizen’s timeline here.

On September 12, prosecutors discovered information contradicting several facts in this indictment — errors Haim’s lawyer, Marcella Burke, say compromise the case entirely.

“The government’s own disclosures blow apart their allegations,” Burke told the Daily Wire last week. “They have both the facts and the law wrong, and we look forward to clearing this up so Dr. Haim can move on with his life.”

The new disclosures contradict the DOJ’s assertion that Dr. Haim ceased operating at TCH in January 2021, a fact prosecutors have used to suggest Haim fraudulently accessed the hospital’s medical system when he pulled charts to send to investigative journalist Christopher Rufo.

In a “routine” meeting with TCH to discuss witness appearances, however, the government learned Haim operated on and consulted with adult and pediatric patients between April 2021 and December 2021 — a full year after the DOJ claimed his residency had ended.

Haim was also listed as a resident in an adult’s surgery in a TCH operative note from April 14, 2023.

In a subsequent filing, Haim’s lawyers explain why this information devastates the DOJ’s case:

The entire premise of the government’s case has been that Dr. Haim was an interloper, falsely claiming responsibility for TCH patients to hide some nefarious and malicious reason for accessing TCH records. This rested on the foundational premise that Dr. Haim treated no patients at TCH after January 2021.

Prosecutors protest this description, claiming Haim still illegally accessed the records of patients not under his care. But previous filings suggest the DOJ relied heavily on their erroneous timeline to throw suspicion on Haim’s motives.

In a pretrial motion requesting that U.S. Judge David Hittner, in part, prevent Haim from calling himself a “whistleblower,” the DOJ wrote, “[Haim] lied to gain access to the medical records of children who were not his patients with the intent to cause malicious harm to the hospital, its doctors, and patients.”

The motion continues boldly,

On April 19, 2023, the defendant emailed an administrator at TCH urgently requesting that his login credentials be restored so he could access “operative cases” he was “covering.” This was a lie. In fact, the defendant wanted to be able to access the medical files of children not under his care. The defendant did not treat or access the files of any adult care patients during this time period at TCH.

The DOJ puts a lot of eggs in this basket: These lies, they suggest, not only show Haim is a liar but that he lied with the intention of maliciously accessing children’s files. The new records don’t just prove prosecutors’ facts wrong — it throws into question all the DOJ’s conclusions about Haim based on the falsity.

New evidence hasn’t been the government’s friend in this case — but the new discovery might force the DOJ to unearth more information from TCH.

Haim’s lawyers asked Hittner to postpone the trial, which is set to begin on October 21, for 90 days, arguing that the prosecution hadn’t unearthed all relevant evidence.

“The government had previously contended it had ‘already produced the vast majority of discovery in this case,’” the filing reads. “[This information] shows that it is wrong.”

One of Haim’s lawyers, Ryan Patrick, explained the importance of the DOJ’s lack of evidence in a statement to the Daily Wire:

Until [September 13], the government has insisted to the defense and the judge that Dr. Haim had zero reason to access TCH medical records. Instead, what this shows is the government convinced a grand jury to indict Dr. Haim without the FBI requesting a basic text search of his name inside the medical record system.

Patrick’s assessment squares with Burke’s early impression of the case, which she called “an ideological, political persecution of an inconvenient truth teller.”

District Attorney Tina Ansari threated Haim with the lawsuit prematurely, Burke told the Daily Citizen earlier this year, alleging Ansari “[told] Dr. Haim to admit wrongdoing to avoid prosecution … before [she] reviewed the evidence.”

Burke continued, “A basic HIPAA violation is at most a misdemeanor, and it’s never been prosecuted absent some additional significant criminal conduct. But, more importantly, she hadn’t seen or provided any evidence of wrongdoing!”

Read the Daily Citizen’s full interview with Burke here.

Judge Hittner filed a proposed order granting Haim a 90-day postponement but has yet to sign it. The delay gives the DOJ time to argue against the continuation.

This is a developing story. The Daily Citizen will continue to publish updates.

Additional Articles and Resources

EXCLUSIVE: Lawyer Marcella Burke talks representing whistleblower Eithan Haim and fighting against child abuse.

EXCLUSIVE: The Daily Citizen interviews Dr. Eithan Haim, the surgeon who exposed a secret transgender medical program at Texas Children’s Hospital.

UPDATE: Texas Children’s Hospital Fires Nurse Accusing It of Medicaid Fraud

Nurse Whistleblower Lobbies Texas Senate to Investigate Fraud at Texas Children’s Hospital

Texas Children’s Whistleblowers Speak at First Joint Event

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