The False Claims Act: Are You Just Shaking a Magic 8 Ball?

Often we read in the news stories of hospitals or health care providers paying inordinate amounts to settle cases in which credible allegations of fraud or allegations of false claims preside. Many times the providers actually committed fraud, waste, or abuse. Maybe medical records were falsified, or maybe the documents were created for Medicaid/care recipients that do not exist. Maybe the services claimed to have been rendered were not. In these cases, the provider can be held liable criminally (fraud) and/or civilly (false claims). And these providers should be held accountable to the government and the taxpayers.

It appears that this is not the case for an Ohio hospital that settled a False Claims Act case for $4.1 million last month. Do not get me wrong: The False Claims Act is no joke. Possible penalties imposed by the False Claims Act can be up to $10,000 per claim “plus 3 times the amount of damages which the Government sustains because of the act of that person.” 37 USC §3729. See blog for more explanation.

In the Ohio hospital’s case, the penalty derived from Dr. Abubakar Atiq Durrani, a spinal surgeon, performing spinal surgeries that, allegedly, were not medically necessary.

According to what I’ve read, there is no question that Dr. Durrani actually performed these surgeries. He did. On actual people who exist. Instead, the allegation is that the surgeries were not medically necessary.

I have blogged about medical necessity in the past. Medical necessity is a subjective standard. Medical necessity is defined as reasonable, necessary, and/or appropriate, based on evidence-based clinical standards of care.

But it is still a subjective standard. When you receive news that you suffer from a debilitating disease, what do you do? You get a second opinion. If one doctor recommends brain surgery, what do you do? You get a second opinion.

After that, you grab a handy, dandy Magic 8 Ball and give it a shake. Kidding. Kinda.

replyhazy

My point is that 2 physicians can recommend two different courses of treatment. One physician may practice more defensive medicine, while another may be more cautious. Surgeons will, generally, recommend surgery, more than non-surgeons; it’s what they do.

Going back to Dr. Durrani, who was arrested in 2013 for allegedly “convinc[ing] [patients] they needed spine and neck surgery. However, other doctors later determined those surgeries as unnecessary and damaging to the patient’s health.”

I find two points striking about this case: (1) The allegation that this physician “convinced” people to undergo spine surgery; and (2) The fact that the hospital settled for $4.1 million when no fraud existed or was alleged, only questions as to medical necessity, which is subjective.

As to the first, I am imagining my doctor. I am imagining that I have horrible, chronic back pain. My doctor recommends spinal surgery. There is no way, at all, ever, in this universe, that any doctor would be able to convince me to undergo surgery if I did not want surgery. Period. Who allows themselves to be peer pressured into surgery? Not to knock on my own profession, but I have a sneaky suspicion that this allegation was concocted by the  plaintiffs’ attorney(s) and the plaintiffs responded, “Oh, you are right. I was persuaded.”

As to the second…Why did the hospital settle for such a high amount? Couldn’t the hospital have gone to trial and convinced a jury that Dr. Durrani’s surgeries were, in fact, reasonable and/or appropriate, based on evidence-based clinical standards of care?

signspointtoyes

According to the Magic 8 Ball, “signs point to yes.” Why cave at such a large number where no fraud was alleged?

Whatever happened to Dr. Durrani because of this whole mess? “Following his arraignment, Durrani allegedly fled the United States and remains a fugitive.”

In sum, based on allegations of questionable medical necessity, not fraud, a hospital paid $4.1 million and a U.S. physician fled into hiding…allegedly.

I question this outcome. I even question whether these types of allegations fall within the False Claims Act.

The False Claims Act holds providers liable for (abridged version):

  • knowingly presenting a fraudulent claim to the Government;
  • knowingly making a fraudulent record or statement to the Government;
  • conspiring to do any of the referenced bullet points;
  • having possession of Government money and knowingly delivering less than the amount;
  • delivering a certified document intending to defraud the Government without completely knowing whether the information was true;
  • knowingly buying or receiving as a pledge of debt, public property from the an employee of the Government who does not have the right to pledge that property;
  • knowingly making, using, or causing to be made or used, a false record material to an obligation to pay the Government, or knowingly concealing or decreasing an obligation to pay the Government.

I see nothing in the False Claims Act punishing a provider for rendering services that, perhaps, may not be medically necessary.

I actually find questions of medical necessity to be easily defensible. After all, who do we look to for determinations of what are reasonable and/or appropriate services, based on evidence-based clinical standards of care?

Our physicians.

Sure, some physicians may have conflicting views as to what is medically necessary. I see it all the time in court. One expert witness physician testifies that the service was medically necessary and another, equally as qualified, physician testifies to the contrary.

Unless I’m missing something (here, folks, is my “CYA”), I just do not understand why allegations of questionable medical necessity caused an U.S. physician to become a fugitive and a hospital to settle for $4.1 million.

It’s as if the hospital shook the Magic 8 Ball and asked whether it would be able to defend itself and received:

outlooknotsogoos

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on November 4, 2015, in Administrative code, Administrative Remedies, Alleged Overpayment, Audits, Credible Allegations of Fraud, Doctors, False Claims, False Claims Act, Federal Government, Federal Law, Fraud, Gordon & Rees, Health Care Providers and Services, Hospital Medicaid Providers, Hospitals, Knicole Emanuel, Lawsuit, Legal Analysis, Legal Remedies for Medicaid Providers, Legislation, Media, Medicaid, Medicaid Attorney, Medicaid Audits, Medicaid Fraud, Medicaid Providers, Medicaid Recoupment, Medicaid Services, Medicaid Spending, Medical Necessity, Medicare, Medicare Attorney, Medicare Audits, Medicare RAC, NC, North Carolina, Ohio Medicaid, Physicians, Post-Payment Reviews, RAC Audits, Regulatory Audits, States, Taxes, Taxpayers, Tentative Notices of Overpayment and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink. 1 Comment.

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