Misstatement in operative report not a crime, doctors’ group tells court

In a motion for leave to file an amicus brief, the Association of American Physicians and Surgeons (AAPS) has told a court that the criminalization of language used in medical reports will have a profoundly chilling effect on the practice of medicine.

In November 2012, John Natale, MD, of Chicago, a cardiothoracic and vascular surgeon, went to federal prison on charges related to difficult, life-saving operations on several patients performed nearly 10 years ago. The patients survived and did well despite an expected mortality of 90%.

Natale was accused of Medicare fraud because of billing under a CPT procedure code allegedly representing a more complex operation than the one he did. He was acquitted by the jury on all counts related to fraud. He was, however, convicted on two counts of making “false statements,” and Judge Rebecca Pallmeyer, JD, decided a prison sentence was needed to send a message to all physicians about the importance of accurate reporting for the financial stability of the Medicare program, explains Jane M. Orient, MD, AAPS executive director.

Natale routinely worked from 5:30 a.m. until late at night, and he habitually was behind in dictating his operative reports. He incorrectly stated that he had used a bifurcation or Y-graft in repairing an abdominal aortic aneurysm, instead of the straight tube graft used. This statement made no difference in the billing, and there was no evidence that Natale “knowingly” and “willfully” made a false statement to violate the law, Orient says.

The government refused consent for AAPS to file the brief; hence there was a need for a motion to the court to accept it.

AAPS argues that the trial court erred in expanding the statute far beyond its legitimate scope, sweeping in misstatements “lacking materiality, lacking fraud, and lacking any proof of willfulness.” In other words, there was no proof of a mens rea, or criminal intent. “False statements can be found in any voluminous body of work, but that does not make them federal crimes,” Orient says.

It is unprecedented to hold medically imprecise, disfavored, or even false statements in an operative report to be a crime in the absence of billing fraud, AAPS notes in the brief. To do so “is a breathtaking expansion in government interference with medical practice, and the resultant chilling effect is detrimental both to efficiency and to the ability of physicians to speak freely about their own work.”

AAPS is asking the Court of Appeals for the Seventh Circuit to reverse the conviction.

Source

  • Jane M. Orient, MD, Executive Director, Association of American Physicians and Surgeons, Arlington, VA. Telephone: (520) 323-3110. Email: janeorientmd@gmail.com.