Treating physicians and expert witnesses often have differing subjective viewpoints on the “medical necessity” for treatment or prescribing of drugs. But, when can a prosecutor’s belief that a physician’s decision “lacks medical necessity” support a finding of criminality? A recent Federal court decision may cast doubt on prosecutors’ legal theories relating to health care fraud cases involving alleged “lack of medical necessity.” Approximately six months after a jury convicted former cardiologist Dr. Richard Paulus of healthcare fraud, a Federal judge overturned that conviction, finding that the government did not provide sufficient evidence to support a conviction. Dr. Paulus was tried on counts of healthcare fraud and making false statements in connection with his billing for performing coronary stents, a procedure which a jury had found to be medically unnecessary given expert testimony provided at trial. The judge’s decision to set aside the jury verdict and overturn the conviction suggests that the government may face a heightened burden when trying cases of this kind.
Government payors, including Medicare and Medicaid require that a treatment is medically necessary as a condition of payment for the product or service. Here, it was alleged that Dr. Paulus performed the coronary stent procedure, in which small wire mesh tubes are placed inside the coronary arteries to prop them open, on patients in instances where it was not medically necessary. Specifically, it was alleged that Dr. Paulus exaggerated patient conditions (which conditions were determined in part from an angiogram) on claims submissions and patient records in an effort to make the stent procedures appear as medically necessity, and therefore eligible for reimbursement by federal payors.
In overturning the conviction, the judge reasoned that differing medical opinions regarding a diagnosis from an angiogram (i.e., a different medical opinion between the government’s expert and the defendant’s expert) was insufficient to allow a jury to conclude that false statements had been submitted to get federal payors to pay for the medically unnecessary procedures. This decision, along with other recent decisions also indicating that differing medical opinions cannot form the sole basis for a healthcare fraud conviction, provide support for providers facing prosecution over medically unnecessary procedures.
Frier Levitt has a team of experienced attorneys dedicated solely to defending provider clients against federal investigations related to healthcare fraud. If you have been notified that you are being investigated in relation to the commission of healthcare fraud or if you think there may be potential that you will be, contact Frier Levitt today to speak to an attorney.
