New Mexico Oncologist Faces Legal Woes
Once Again

Roxanne Nelson RN, BSN

November 11, 2021

A New Mexico oncologist has once again found himself at odds with the law.    

Mohamed Aswad, MD, was still under probation for a past misdemeanor involving misbranded cancer drugs when he allegedly underdosed chemotherapy in a patient with colon cancer. The patient later died.

In a wrongful death case, a jury has awarded $2.3 million in damages to the patient's wife. The patient, James Hoag, was diagnosed with stage IIIB colon cancer in 2015. He underwent surgery and then went for chemotherapy to Aswad, who was the only oncologist in the area.

Hoag's attorneys alleged that Aswad "recklessly administered" abnormally low doses of chemotherapy, and dragged out the normal 6-month regimen to 14 months, in an attempt to "unduly profit."

"It was statistically likely that James would beat his cancer with proper treatment," said his lawyers during the trial, according to a report in the Albuquerque Journal.

The jury deliberated for only 4 hours, and found that negligence by Aswad was a proximate cause of the patient's "lost chance to avoid the loss of his life and resulting damages," and the jury further described Aswad's actions as "wanton," according to a verdict form filed in the case.

The form also shows that the jury decided Aswad had obtained Hoag's informed consent as to the treatment, but still felt that negligence was a cause of Hoag's injury and damages. The original judgment of $2.9 million in damages was subsequently reduced to $2.3 million as the jury found Hoag was 30% responsible for his injuries.

Aswad could not be reached for comment. The Albuquerque Journal reports that he plans to appeal the verdict.

Only Oncologist in the County

The patient had lived in the rural community of Deming, New Mexico following his retirement from a career in law enforcement in Michigan. He was diagnosed with colon cancer in 2015, underwent surgical resection, and then went to Aswad for follow-up chemotherapy.

Aswad was the only oncologist in the area. Like many other rural communities throughout the US, this region has a severe shortage of medical specialists.

Sheila Hoag, the patient's widow, testified during the trial that following her husband's surgery in August 2015, which removed the tumor, his "prognosis was very good because they had caught it before it spread." He had an estimated 5-year survival of about 69%.

However, even though Aswad followed the National Comprehensive Cancer Network (NCCN) guidelines for adjuvant chemotherapy, he did not use the proper dosing. According to trial testimony, he administered "woefully lower doses" than are recommended, and also exceeded the recommended 6-month duration of chemotherapy by more than double. In addition, Aswad also failed to adequately monitor the disease during treatment, said Hoag's lawyers.

Aswad has denied the charges and says that he prescribed a modified regimen spread out over a longer period of time because his patient had requested it. He said that Hoag did not want to undergo chemotherapy that could cause significant side effects, and this was the reason for the altered treatment plan.

However, the chemotherapy failed to slow the cancer's progression, and Hoag never returned to see him after November 2016.

By December 2017, Hoag had been hospitalized and was being treated by another oncologist, located in Las Cruces, 62 miles away from his home. The new oncologist administered the standard treatment, but by then his cancer had metastasized. Hoag died in 2020 at age 59.

Previous Misdemeanor With Misbranded Drugs

At the time he was treating Hoag, Aswad was on federal probation after pleading guilty in 2014 to one misdemeanor count of the unlawful introduction of misbranded drugs into interstate commerce.

As previously reported by Medscape Medical News, Aswad had treated cancer patients with a "misbranded" drug imported from abroad and not approved by the US Food and Drug Administration (FDA). Altuzan is a form of bevacizumab that is approved for use in Turkey but not the United States. Between July 2010 and April 2012, Aswad ordered prescription cancer drugs, including Altuzan, from a Canadian company and then administered the "misbranded" drugs to his patients.

A prescription drug is considered to be "misbranded" if it is manufactured in a facility that has not been registered with the FDA for commercial distribution within the United States.

According to various media reports, Aswad paid significantly less for these drugs than he would have if had he purchased the US-approved product bearing the same brand or generic name, and then billed federal programs such as Medicare for the full price. He has admitted to making just under $1.3 million in profits.

Under the terms of the plea agreement, he was sentenced to three years of probation, required to pay just under $1.3 million in restitution to Medicare and Tricare, the victims of his criminal conduct, and also to forfeit $750,000, which represented part of his net criminal proceeds, to the United States.

At the trial, Aswad denied that there was any profit motive in extending Hoag's treatment, and in a 2019 deposition, he also denied he was under financial pressure to increase his billings because of the $2 million debt that he owed because of the misbranded drugs fine.

Allowed to Resume Practice

In late 2015, Aswad was essentially barred by the federal government from accepting any reimbursement from Medicaid or Medicare for a minimum of 13 years. But because of the urgent need for medical specialists, the New Mexico Human Services Department requested a waiver that would permit him to continuing treating cancer patients since he is the only oncologist in Luna County.

He is currently allowed to treat Medicaid and Medicare patients in four other medically underserved New Mexico counties.

Aswad, a graduate of the University of Aleppo, in Syria, had an internal medicine residency at Our Lady of Mercy Hospital in New York City, where he also had a fellowship in oncology and hematology. He then settled in Deming and has been licensed in New Mexico since 2003.

With the onset of the COVID-19 pandemic, which caused major disruption to healthcare services, Medicare & Medicaid Services officials requested that Aswad also be allowed to provide internal medicine services for Medicare patients in Catron and Hildalgo counties for the "duration of the Coronavirus Disease 2019 public health emergency declared by the federal government in January 2020."

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