In previous columns, I have addressed the how, why and when of fraud lawsuits brought against doctors and dermatologists by the US attorney. With the burden increasing to rein in medical costs, the pressure to squeeze fraud (and even errors of confusion of billing simple procedures with more complex procedures) out of the system has increased as well. In this article, I will discuss a dermatologist who was found guilty of fraud along with a vascular surgeon who was brought down by charting errors.
United States vs Robert Kolbusz
Dr. Robert Kolbusz, a dermatologist in Downers Grove, IL, was charged in a seven-count indictment in October of 2012, including charges of defrauding Medicare and private health insurance companies by submitting false claims for hundreds of patients that resulted in millions of dollars in losses.1 Kolbusz falsely diagnosed patients with actinic keratoses and then billed Medicare, BlueCross BlueShield of Illinois, Aetna and Humana for treatments that were ineffective and falsely documented.
Dr. Kolbusz, 55, of Oak Brook, IL, was charged with four counts of wire fraud and three counts of mail fraud.1 He was later arraigned in the US District Court. Between 2003 and 2010, Dr. Kolbusz allegedly falsely documented patients’ charts to support medically unnecessary cosmetic treatments that he ordered. In some instances, he falsely documented the removal of more than 1,000 lesions from patients over several years, according to the indictment.
The Federal Bureau of Investigation and the Health and Human Services’ Office of the Inspector General (HHS-OIG) investigated the case. It is still pending in federal court.
United States vs John Natale
The case the US Attorney brought against Dr. Natale was more interesting than a simple fraud case. Dr. Natale was a Chicago-area vascular and thoracic surgeon who had saved the lives of five seriously ill patients, who had an average age 78, by performing complicated repairs of abdominal aortic aneurysms. He was accused of describing the procedures as more complex than they actually were, supposedly in order to collect more payment.
Dr. Natale went to trial and was found not guilty on all of the fraud charges. However, he was convicted on two counts of making “false statements” in his operative reports.1 The trial focused on six surgeries performed in 2003 and 2004 on patients at Northwest Community Hospital in Arlington Heights, IL.
Despite Dr. Natale’s objection, the jury was allowed to review what the doctor claimed were prejudicial diagrams that supposedly represented the operation as described in the operative report as well as the operation that was actually done. A Y-shaped graft that was mentioned in the operative report was different from the tube-shaped graft that was actually put in the patient, by the doctor’s own admission. The government had, thereby, emphasized a false statement by the defendant. Simply put, according to the US attorney, Dr. Natale prepared false post-operation reports that, among other things, contained extensive details about aneurysm repairs that he never performed and falsely described surgeries as being more complex and elaborate than they actually were – surgeries that he did not actually perform.
Dr. Natale was sentenced to 10 months in federal custody.1 US District Judge Rebecca Pallmeyer also imposed a $40,000 fine and periods of community service during one year of supervised release after incarceration. Dr. Natale faced a maximum sentence of five years in prison and a federal sentencing guideline range of 15 to 21 months after Judge Pallmeyer also found that the doctor had obstructed justice while testifying on his own behalf.1
The term “false statement” suggests a deliberate lie, but it could be, as Dr. Natale said, a simple mistake, made while a tired, overworked surgeon dictated a pile of reports weeks after the surgery. The jury was not instructed that a false statement is a crime only if made in a deliberate attempt to commit fraud — and, as the jury determined, there was no fraud.
The fraud charges examined whether Dr. Natale had billed for an operation more complex than the one he actually performed and were related to the upper end of the graft, not the lower end. All the patients had an abdominal aortic aneurysm that involved the renal arteries so that the aorta had to be clamped above the branches supplying the kidneys. Dr. Natale did a reconstructive procedure to strengthen the aorta so he did not have to cut the renal arteries off the aorta and sew them into the graft. There is no precise copyrighted code from the American Medical Association (AMA) for this, so Dr. Natale used the closest one, which is not for a more complex procedure and did not increase his payment. The hospital did not support Dr. Natale; Northwest Community Hospital medical officials, who also testified at trial, cooperated with the government’s investigation.
Counting against Dr. Natale was the fact that his operative reports and surgical actions had adverse effects on patient care. In the case of one patient whose medical condition deteriorated a year after Dr. Natale operated, another surgeon testified that he had to untangle the falsehoods in Dr. Natale’s records, which, if relied upon, would have had a serious impact on his subsequent treatment of the patient.
After seven years of searching, the government was able to come up with only five cases to include in the indictment, all of them frail, elderly patients who would have died of rupture of their weakened abdominal aorta without surgery or of kidney failure from inadequate surgery. All the patients survived and did well after surgery. The key patient survived for nearly a year after Dr. Natale’s operation. Later, after two very aggressive, likely unnecessary re-operations by Dr. Natale’s main accuser, the patient died.
On appeal, the main argument was not about justice, but rather about what the defense attorney did or did not say during the trial. Did he “waive” or “forfeit” grounds for appeal by not objecting to the jury instructions?2
One judge referred to the need to apply the law that was in effect from 2002 to 2004. Under more recent law, the government’s burden of proof has been lightened. The mens rea, or criminal intent requirement, is virtually gone. The prosecutor does not need to prove that a doctor “knowingly and willfully” lied in order to pad his fee; the prosecutor only needs to show that an incorrect AMA code was used and that the doctor intended to be paid for his work.
The implications of the case were significant, the judge noted: Any error in any medical record related to a health program could be a federal crime.2 At the appeal, the main argument was not about justice, but rather about what the defense attorney did or did not say during the trial.2 Did he “waive” or “forfeit” grounds for appeal by not objecting to the jury instructions?2 The outcome of the trial shows how important it is to have an aggressive defense lawyer.
Case Analysis
If a harmless error in an operative note can send a good physician like Dr. John Natale to federal prison, practicing physicians now have one more burden to distract them from providing exemplary care to patients. Physicians will now need to practice “defensive documentation,” taking more time away from patient care in order to double-check and triple-check their operative notes – or say less in their notes – lest a few inevitable errors be used to incarcerate them and destroy their careers. This precedent criminalizes false statements in a private setting without any proof of billing fraud, and a greater interference with the day-to-day practice of medicine is difficult to imagine. A cardiothoracic surgeon understands that “re-implant” means restore blood flow and does not necessarily imply cutting off the renal arteries from the aorta and re-implanting them into the graft, as shown in the inaccurate diagrams that Medicare fees are based on.
The surgery that was actually performed by Dr. Natale was not any less complex than the more routine procedure imagined by the prosecution. Dr. Natale’s procedure was, in fact, “safer for the patient,” as the prosecution supplied to the jury over defense objections. Medical misstatements are as inevitable as typos in legal work. They are not federal crimes. Holding them to be a crime is a great expansion in government interference with medical practice, and the resultant chilling effect is detrimental both to efficiency and the ability of physicians to speak freely about their own work. The application of 18 U.S.C. § 1035 below extended far beyond its legitimate scope, sweeping in falsehoods lacking materiality, fraud and any proof of willfulness. Simply put, mens rea was not proven here.
Even if Dr. Natale had known that his statements in his dictation were false, he plainly did not make willfully false statements in violation of the law. The clear, chilling effect of the conviction of Dr. Natale is to encourage physicians to say less, not more, in their notes and reports, which increases the possibility of making a mistake that might be called a crime later.
This is contrary to the Supreme Court teachings against criminalizing false statements. For an example, see United States v Alvarez, 132 S. Ct. at 2545: “The requirements of a knowing falsehood or reckless disregard for the truth as the condition for recovery in certain defamation cases exists to allow more speech, not less rule restricting it.” Converting non-harmful misstatements between private parties into federal crimes does great harm to a medical system that can ill afford it. Immanuel Kant properly rejected punishing defendants for utilitarian reasons, or for any reason other than defendants’ own criminal culpability: “Juridical punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else and can never be confused with the objects of the Law of things.”
It seems likely that someone at the hospital or a fellow doctor who had it in for Dr. Natale somehow brought this case to the attention of the US Attorney. The fact that the defective notes later impacted care might be at the heart of why the suit was brought in the first place. The exact reasons why the case was brought other than the clear records and complaints of others will never be known.
Conclusions
The bar for suits against doctors is being lowered all the time. As the reader might have gleaned from my articles on the final HIPAA regulations, even an unknowing violation can result in fine and federal action. No longer will a simple note that says that a lesion is “ill defined” as a basis for Mohs surgery be a legal aegis. Explaining why a procedure is complex rather than simple must be documented fully rather than in summary. More and more insurances are only paying for freezing actinic keratoses (AKs) 3-4 times a year, and I can imagine a regimen that requires pretreatment with topical 5-FU before insurance pays for removal of any AKs that remain. I can imagine that the Centers for Medicare & Medicaid Services might take a cue from the United Kingdom and France, where Mohs is a treatment of last resort that is seldom done and hardly paid for. Simply put, it is not only higher deductibles that will impact dermatologists and surgeons, but the very medical necessity of what they do. n
Dr. Scheinfeld graduated from Harvard Law School in 1989 and Yale Medical School in 1997. He is an Assistant Clinical Professor in the Department of Dermatology at Weill Cornell Medical College in New York, NY.
Disclosure: Dr. Scheinfeld has no conflicts of interest with any material in this column.
References
1. McHenry County Blog. Chicago area surgeon sentenced to 10 months in custody for making false statements about services and Medicare benefits. https://bit.ly/12jN6eW. Accessed June 12, 2013.
2. Association of American Physicians and Surgeons. Doctors ask: Is a charting error a federal crime? https://bit.ly/16Ml3bj. Accessed June 12, 2013.
In previous columns, I have addressed the how, why and when of fraud lawsuits brought against doctors and dermatologists by the US attorney. With the burden increasing to rein in medical costs, the pressure to squeeze fraud (and even errors of confusion of billing simple procedures with more complex procedures) out of the system has increased as well. In this article, I will discuss a dermatologist who was found guilty of fraud along with a vascular surgeon who was brought down by charting errors.
United States vs Robert Kolbusz
Dr. Robert Kolbusz, a dermatologist in Downers Grove, IL, was charged in a seven-count indictment in October of 2012, including charges of defrauding Medicare and private health insurance companies by submitting false claims for hundreds of patients that resulted in millions of dollars in losses.1 Kolbusz falsely diagnosed patients with actinic keratoses and then billed Medicare, BlueCross BlueShield of Illinois, Aetna and Humana for treatments that were ineffective and falsely documented.
Dr. Kolbusz, 55, of Oak Brook, IL, was charged with four counts of wire fraud and three counts of mail fraud.1 He was later arraigned in the US District Court. Between 2003 and 2010, Dr. Kolbusz allegedly falsely documented patients’ charts to support medically unnecessary cosmetic treatments that he ordered. In some instances, he falsely documented the removal of more than 1,000 lesions from patients over several years, according to the indictment.
The Federal Bureau of Investigation and the Health and Human Services’ Office of the Inspector General (HHS-OIG) investigated the case. It is still pending in federal court.
United States vs John Natale
The case the US Attorney brought against Dr. Natale was more interesting than a simple fraud case. Dr. Natale was a Chicago-area vascular and thoracic surgeon who had saved the lives of five seriously ill patients, who had an average age 78, by performing complicated repairs of abdominal aortic aneurysms. He was accused of describing the procedures as more complex than they actually were, supposedly in order to collect more payment.
Dr. Natale went to trial and was found not guilty on all of the fraud charges. However, he was convicted on two counts of making “false statements” in his operative reports.1 The trial focused on six surgeries performed in 2003 and 2004 on patients at Northwest Community Hospital in Arlington Heights, IL.
Despite Dr. Natale’s objection, the jury was allowed to review what the doctor claimed were prejudicial diagrams that supposedly represented the operation as described in the operative report as well as the operation that was actually done. A Y-shaped graft that was mentioned in the operative report was different from the tube-shaped graft that was actually put in the patient, by the doctor’s own admission. The government had, thereby, emphasized a false statement by the defendant. Simply put, according to the US attorney, Dr. Natale prepared false post-operation reports that, among other things, contained extensive details about aneurysm repairs that he never performed and falsely described surgeries as being more complex and elaborate than they actually were – surgeries that he did not actually perform.
Dr. Natale was sentenced to 10 months in federal custody.1 US District Judge Rebecca Pallmeyer also imposed a $40,000 fine and periods of community service during one year of supervised release after incarceration. Dr. Natale faced a maximum sentence of five years in prison and a federal sentencing guideline range of 15 to 21 months after Judge Pallmeyer also found that the doctor had obstructed justice while testifying on his own behalf.1
The term “false statement” suggests a deliberate lie, but it could be, as Dr. Natale said, a simple mistake, made while a tired, overworked surgeon dictated a pile of reports weeks after the surgery. The jury was not instructed that a false statement is a crime only if made in a deliberate attempt to commit fraud — and, as the jury determined, there was no fraud.
The fraud charges examined whether Dr. Natale had billed for an operation more complex than the one he actually performed and were related to the upper end of the graft, not the lower end. All the patients had an abdominal aortic aneurysm that involved the renal arteries so that the aorta had to be clamped above the branches supplying the kidneys. Dr. Natale did a reconstructive procedure to strengthen the aorta so he did not have to cut the renal arteries off the aorta and sew them into the graft. There is no precise copyrighted code from the American Medical Association (AMA) for this, so Dr. Natale used the closest one, which is not for a more complex procedure and did not increase his payment. The hospital did not support Dr. Natale; Northwest Community Hospital medical officials, who also testified at trial, cooperated with the government’s investigation.
Counting against Dr. Natale was the fact that his operative reports and surgical actions had adverse effects on patient care. In the case of one patient whose medical condition deteriorated a year after Dr. Natale operated, another surgeon testified that he had to untangle the falsehoods in Dr. Natale’s records, which, if relied upon, would have had a serious impact on his subsequent treatment of the patient.
After seven years of searching, the government was able to come up with only five cases to include in the indictment, all of them frail, elderly patients who would have died of rupture of their weakened abdominal aorta without surgery or of kidney failure from inadequate surgery. All the patients survived and did well after surgery. The key patient survived for nearly a year after Dr. Natale’s operation. Later, after two very aggressive, likely unnecessary re-operations by Dr. Natale’s main accuser, the patient died.
On appeal, the main argument was not about justice, but rather about what the defense attorney did or did not say during the trial. Did he “waive” or “forfeit” grounds for appeal by not objecting to the jury instructions?2
One judge referred to the need to apply the law that was in effect from 2002 to 2004. Under more recent law, the government’s burden of proof has been lightened. The mens rea, or criminal intent requirement, is virtually gone. The prosecutor does not need to prove that a doctor “knowingly and willfully” lied in order to pad his fee; the prosecutor only needs to show that an incorrect AMA code was used and that the doctor intended to be paid for his work.
The implications of the case were significant, the judge noted: Any error in any medical record related to a health program could be a federal crime.2 At the appeal, the main argument was not about justice, but rather about what the defense attorney did or did not say during the trial.2 Did he “waive” or “forfeit” grounds for appeal by not objecting to the jury instructions?2 The outcome of the trial shows how important it is to have an aggressive defense lawyer.
Case Analysis
If a harmless error in an operative note can send a good physician like Dr. John Natale to federal prison, practicing physicians now have one more burden to distract them from providing exemplary care to patients. Physicians will now need to practice “defensive documentation,” taking more time away from patient care in order to double-check and triple-check their operative notes – or say less in their notes – lest a few inevitable errors be used to incarcerate them and destroy their careers. This precedent criminalizes false statements in a private setting without any proof of billing fraud, and a greater interference with the day-to-day practice of medicine is difficult to imagine. A cardiothoracic surgeon understands that “re-implant” means restore blood flow and does not necessarily imply cutting off the renal arteries from the aorta and re-implanting them into the graft, as shown in the inaccurate diagrams that Medicare fees are based on.
The surgery that was actually performed by Dr. Natale was not any less complex than the more routine procedure imagined by the prosecution. Dr. Natale’s procedure was, in fact, “safer for the patient,” as the prosecution supplied to the jury over defense objections. Medical misstatements are as inevitable as typos in legal work. They are not federal crimes. Holding them to be a crime is a great expansion in government interference with medical practice, and the resultant chilling effect is detrimental both to efficiency and the ability of physicians to speak freely about their own work. The application of 18 U.S.C. § 1035 below extended far beyond its legitimate scope, sweeping in falsehoods lacking materiality, fraud and any proof of willfulness. Simply put, mens rea was not proven here.
Even if Dr. Natale had known that his statements in his dictation were false, he plainly did not make willfully false statements in violation of the law. The clear, chilling effect of the conviction of Dr. Natale is to encourage physicians to say less, not more, in their notes and reports, which increases the possibility of making a mistake that might be called a crime later.
This is contrary to the Supreme Court teachings against criminalizing false statements. For an example, see United States v Alvarez, 132 S. Ct. at 2545: “The requirements of a knowing falsehood or reckless disregard for the truth as the condition for recovery in certain defamation cases exists to allow more speech, not less rule restricting it.” Converting non-harmful misstatements between private parties into federal crimes does great harm to a medical system that can ill afford it. Immanuel Kant properly rejected punishing defendants for utilitarian reasons, or for any reason other than defendants’ own criminal culpability: “Juridical punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else and can never be confused with the objects of the Law of things.”
It seems likely that someone at the hospital or a fellow doctor who had it in for Dr. Natale somehow brought this case to the attention of the US Attorney. The fact that the defective notes later impacted care might be at the heart of why the suit was brought in the first place. The exact reasons why the case was brought other than the clear records and complaints of others will never be known.
Conclusions
The bar for suits against doctors is being lowered all the time. As the reader might have gleaned from my articles on the final HIPAA regulations, even an unknowing violation can result in fine and federal action. No longer will a simple note that says that a lesion is “ill defined” as a basis for Mohs surgery be a legal aegis. Explaining why a procedure is complex rather than simple must be documented fully rather than in summary. More and more insurances are only paying for freezing actinic keratoses (AKs) 3-4 times a year, and I can imagine a regimen that requires pretreatment with topical 5-FU before insurance pays for removal of any AKs that remain. I can imagine that the Centers for Medicare & Medicaid Services might take a cue from the United Kingdom and France, where Mohs is a treatment of last resort that is seldom done and hardly paid for. Simply put, it is not only higher deductibles that will impact dermatologists and surgeons, but the very medical necessity of what they do. n
Dr. Scheinfeld graduated from Harvard Law School in 1989 and Yale Medical School in 1997. He is an Assistant Clinical Professor in the Department of Dermatology at Weill Cornell Medical College in New York, NY.
Disclosure: Dr. Scheinfeld has no conflicts of interest with any material in this column.
References
1. McHenry County Blog. Chicago area surgeon sentenced to 10 months in custody for making false statements about services and Medicare benefits. https://bit.ly/12jN6eW. Accessed June 12, 2013.
2. Association of American Physicians and Surgeons. Doctors ask: Is a charting error a federal crime? https://bit.ly/16Ml3bj. Accessed June 12, 2013.
In previous columns, I have addressed the how, why and when of fraud lawsuits brought against doctors and dermatologists by the US attorney. With the burden increasing to rein in medical costs, the pressure to squeeze fraud (and even errors of confusion of billing simple procedures with more complex procedures) out of the system has increased as well. In this article, I will discuss a dermatologist who was found guilty of fraud along with a vascular surgeon who was brought down by charting errors.
United States vs Robert Kolbusz
Dr. Robert Kolbusz, a dermatologist in Downers Grove, IL, was charged in a seven-count indictment in October of 2012, including charges of defrauding Medicare and private health insurance companies by submitting false claims for hundreds of patients that resulted in millions of dollars in losses.1 Kolbusz falsely diagnosed patients with actinic keratoses and then billed Medicare, BlueCross BlueShield of Illinois, Aetna and Humana for treatments that were ineffective and falsely documented.
Dr. Kolbusz, 55, of Oak Brook, IL, was charged with four counts of wire fraud and three counts of mail fraud.1 He was later arraigned in the US District Court. Between 2003 and 2010, Dr. Kolbusz allegedly falsely documented patients’ charts to support medically unnecessary cosmetic treatments that he ordered. In some instances, he falsely documented the removal of more than 1,000 lesions from patients over several years, according to the indictment.
The Federal Bureau of Investigation and the Health and Human Services’ Office of the Inspector General (HHS-OIG) investigated the case. It is still pending in federal court.
United States vs John Natale
The case the US Attorney brought against Dr. Natale was more interesting than a simple fraud case. Dr. Natale was a Chicago-area vascular and thoracic surgeon who had saved the lives of five seriously ill patients, who had an average age 78, by performing complicated repairs of abdominal aortic aneurysms. He was accused of describing the procedures as more complex than they actually were, supposedly in order to collect more payment.
Dr. Natale went to trial and was found not guilty on all of the fraud charges. However, he was convicted on two counts of making “false statements” in his operative reports.1 The trial focused on six surgeries performed in 2003 and 2004 on patients at Northwest Community Hospital in Arlington Heights, IL.
Despite Dr. Natale’s objection, the jury was allowed to review what the doctor claimed were prejudicial diagrams that supposedly represented the operation as described in the operative report as well as the operation that was actually done. A Y-shaped graft that was mentioned in the operative report was different from the tube-shaped graft that was actually put in the patient, by the doctor’s own admission. The government had, thereby, emphasized a false statement by the defendant. Simply put, according to the US attorney, Dr. Natale prepared false post-operation reports that, among other things, contained extensive details about aneurysm repairs that he never performed and falsely described surgeries as being more complex and elaborate than they actually were – surgeries that he did not actually perform.
Dr. Natale was sentenced to 10 months in federal custody.1 US District Judge Rebecca Pallmeyer also imposed a $40,000 fine and periods of community service during one year of supervised release after incarceration. Dr. Natale faced a maximum sentence of five years in prison and a federal sentencing guideline range of 15 to 21 months after Judge Pallmeyer also found that the doctor had obstructed justice while testifying on his own behalf.1
The term “false statement” suggests a deliberate lie, but it could be, as Dr. Natale said, a simple mistake, made while a tired, overworked surgeon dictated a pile of reports weeks after the surgery. The jury was not instructed that a false statement is a crime only if made in a deliberate attempt to commit fraud — and, as the jury determined, there was no fraud.
The fraud charges examined whether Dr. Natale had billed for an operation more complex than the one he actually performed and were related to the upper end of the graft, not the lower end. All the patients had an abdominal aortic aneurysm that involved the renal arteries so that the aorta had to be clamped above the branches supplying the kidneys. Dr. Natale did a reconstructive procedure to strengthen the aorta so he did not have to cut the renal arteries off the aorta and sew them into the graft. There is no precise copyrighted code from the American Medical Association (AMA) for this, so Dr. Natale used the closest one, which is not for a more complex procedure and did not increase his payment. The hospital did not support Dr. Natale; Northwest Community Hospital medical officials, who also testified at trial, cooperated with the government’s investigation.
Counting against Dr. Natale was the fact that his operative reports and surgical actions had adverse effects on patient care. In the case of one patient whose medical condition deteriorated a year after Dr. Natale operated, another surgeon testified that he had to untangle the falsehoods in Dr. Natale’s records, which, if relied upon, would have had a serious impact on his subsequent treatment of the patient.
After seven years of searching, the government was able to come up with only five cases to include in the indictment, all of them frail, elderly patients who would have died of rupture of their weakened abdominal aorta without surgery or of kidney failure from inadequate surgery. All the patients survived and did well after surgery. The key patient survived for nearly a year after Dr. Natale’s operation. Later, after two very aggressive, likely unnecessary re-operations by Dr. Natale’s main accuser, the patient died.
On appeal, the main argument was not about justice, but rather about what the defense attorney did or did not say during the trial. Did he “waive” or “forfeit” grounds for appeal by not objecting to the jury instructions?2
One judge referred to the need to apply the law that was in effect from 2002 to 2004. Under more recent law, the government’s burden of proof has been lightened. The mens rea, or criminal intent requirement, is virtually gone. The prosecutor does not need to prove that a doctor “knowingly and willfully” lied in order to pad his fee; the prosecutor only needs to show that an incorrect AMA code was used and that the doctor intended to be paid for his work.
The implications of the case were significant, the judge noted: Any error in any medical record related to a health program could be a federal crime.2 At the appeal, the main argument was not about justice, but rather about what the defense attorney did or did not say during the trial.2 Did he “waive” or “forfeit” grounds for appeal by not objecting to the jury instructions?2 The outcome of the trial shows how important it is to have an aggressive defense lawyer.
Case Analysis
If a harmless error in an operative note can send a good physician like Dr. John Natale to federal prison, practicing physicians now have one more burden to distract them from providing exemplary care to patients. Physicians will now need to practice “defensive documentation,” taking more time away from patient care in order to double-check and triple-check their operative notes – or say less in their notes – lest a few inevitable errors be used to incarcerate them and destroy their careers. This precedent criminalizes false statements in a private setting without any proof of billing fraud, and a greater interference with the day-to-day practice of medicine is difficult to imagine. A cardiothoracic surgeon understands that “re-implant” means restore blood flow and does not necessarily imply cutting off the renal arteries from the aorta and re-implanting them into the graft, as shown in the inaccurate diagrams that Medicare fees are based on.
The surgery that was actually performed by Dr. Natale was not any less complex than the more routine procedure imagined by the prosecution. Dr. Natale’s procedure was, in fact, “safer for the patient,” as the prosecution supplied to the jury over defense objections. Medical misstatements are as inevitable as typos in legal work. They are not federal crimes. Holding them to be a crime is a great expansion in government interference with medical practice, and the resultant chilling effect is detrimental both to efficiency and the ability of physicians to speak freely about their own work. The application of 18 U.S.C. § 1035 below extended far beyond its legitimate scope, sweeping in falsehoods lacking materiality, fraud and any proof of willfulness. Simply put, mens rea was not proven here.
Even if Dr. Natale had known that his statements in his dictation were false, he plainly did not make willfully false statements in violation of the law. The clear, chilling effect of the conviction of Dr. Natale is to encourage physicians to say less, not more, in their notes and reports, which increases the possibility of making a mistake that might be called a crime later.
This is contrary to the Supreme Court teachings against criminalizing false statements. For an example, see United States v Alvarez, 132 S. Ct. at 2545: “The requirements of a knowing falsehood or reckless disregard for the truth as the condition for recovery in certain defamation cases exists to allow more speech, not less rule restricting it.” Converting non-harmful misstatements between private parties into federal crimes does great harm to a medical system that can ill afford it. Immanuel Kant properly rejected punishing defendants for utilitarian reasons, or for any reason other than defendants’ own criminal culpability: “Juridical punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else and can never be confused with the objects of the Law of things.”
It seems likely that someone at the hospital or a fellow doctor who had it in for Dr. Natale somehow brought this case to the attention of the US Attorney. The fact that the defective notes later impacted care might be at the heart of why the suit was brought in the first place. The exact reasons why the case was brought other than the clear records and complaints of others will never be known.
Conclusions
The bar for suits against doctors is being lowered all the time. As the reader might have gleaned from my articles on the final HIPAA regulations, even an unknowing violation can result in fine and federal action. No longer will a simple note that says that a lesion is “ill defined” as a basis for Mohs surgery be a legal aegis. Explaining why a procedure is complex rather than simple must be documented fully rather than in summary. More and more insurances are only paying for freezing actinic keratoses (AKs) 3-4 times a year, and I can imagine a regimen that requires pretreatment with topical 5-FU before insurance pays for removal of any AKs that remain. I can imagine that the Centers for Medicare & Medicaid Services might take a cue from the United Kingdom and France, where Mohs is a treatment of last resort that is seldom done and hardly paid for. Simply put, it is not only higher deductibles that will impact dermatologists and surgeons, but the very medical necessity of what they do. n
Dr. Scheinfeld graduated from Harvard Law School in 1989 and Yale Medical School in 1997. He is an Assistant Clinical Professor in the Department of Dermatology at Weill Cornell Medical College in New York, NY.
Disclosure: Dr. Scheinfeld has no conflicts of interest with any material in this column.
References
1. McHenry County Blog. Chicago area surgeon sentenced to 10 months in custody for making false statements about services and Medicare benefits. https://bit.ly/12jN6eW. Accessed June 12, 2013.
2. Association of American Physicians and Surgeons. Doctors ask: Is a charting error a federal crime? https://bit.ly/16Ml3bj. Accessed June 12, 2013.
