Government to surgery providers: ‘Be perfect, or be very afraid’

Criminal charges for documentation mistake has field in uproar

(This is the first part of a two-part series on avoiding liability with documentation, see story, below. This month, we discuss the case of a surgeon who was charged and jailed regarding mistakes he made in the medical record that did not impact billing. Next month, we’ll cover the specific lessons that can be learned from the case.)

Members of the outpatient surgery field are outraged that a Chicago surgeon was charged and jailed after he made a mistake in his operative reports that resulted in no difference in the billing. 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, the Association of American Physicians and Surgeons (AAPS) said in a brief filed in the case. 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 said.

Jane M. Orient, MD, AAPS executive director, says, “The government explicitly wants to send a message: Be perfect, or be very afraid,” says “Doctors are the scapegoats for Medicare failures. More doctors will retire, avoid Medicare, avoid tough cases, or become employees and follow protocols.”

Here are the details: 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 a mortality rate of up to 90% with the procedure. Natale was accused of Medicare fraud because of billing under a CPT procedure code representing a more complex operation than the one he did. He was acquitted by the jury on all counts related to fraud. However, he was convicted on two counts of making false statements, and the judge 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, Orient says.

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.

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. Natale and the AAPS have asked the Court of Appeals for the Seventh Circuit to reverse the conviction, but at press time, no decision had been made.

The impact of this case may be significant, says Stephen Trosty, JD, MHA, CPHRM, ARM, president of Risk Management Consulting Corp., in Haslett, MI, “The absence of a requirement in this criminal case to establish intent, as is true for other criminal cases, can have a chilling effect on physician practice of medicine on complicated operations or cases,” he says. “It is outrageous that this judge has, for all intent and purpose, established a new threshold for establishing or proving guilt for an alleged criminal act.”

This case illustrates what might have been unintentional dictations of faulty facts due to the time that elapsed between the procedure and the dictation, says Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM, of The Kicklighter Group, which is a Tamarac, FL-based consulting group that specializes in risk management, patient safety, infection prevention, and loss prevention in ambulatory settings. The patients, for the most part, had good outcomes, she points out. “This case was not about practicing medicine below the standard of care; rather it related to documentation,” Kicklighter says.

Problems could have arisen if the patient needed further care, and that care was based on an inaccurate operative report, she says. “Depending on future tests or procedures, if the subsequent care provider is relying on the dictated op note that a certain style/type of graft was used when, in fact, it was another, the patient could suffer a medical error and untoward outcome,” Kicklighter says.

The lesson? The dictation and availability of the record to subsequent caregivers must be done in a timely manner, she says. “The longer the delay from the encounter or procedure, the more the possibility to forget salient patient-specific information,” Kicklighter says.

In a perfect world, surgery and other cases would be contemporaneously dictated, she says. “In the real world, operative and procedural reports should be dictated at the end of each procedure/surgery,” Kicklighter says. The more time that lapses, the more the provider has to rely on memory, so details may be forgotten or less clear, she says. “A busy general surgeon who has done several exploratory laps, appendectomies, tumor removals from the abdomen over a few days may not remember certain aspects of a procedure related to a specific patient,” she says.

Hospitals and ambulatory surgery centers usually require that charts must be completed within 30 days of discharge and that surgical and other procedures must be dictated within about 10 days, Kicklighter says. “Those who do not meet those thresholds may be at risk for disciplinary action up to and including suspension,” she says.

The Joint Commission says that accredited hospitals must define the time frame for completion of the medical record, which does not exceed 30 days after discharge. Its accredited ambulatory organizations and offices must define the timeframe for completion of the clinical record. The AAAHC Handbook, Chapter 6, requires organizations to enter information in “a timely fashion.” “AAAHC does not list a specific timeframe, although 24 hours would be considered timely,” says Geoffrey Charlton-Perrin, AAAHC spokesperson. AAAHC specifies what information should be recorded, that it should be legible and, if the patient record is lengthy, that it should contain a summary to facilitate continuity of care, Charlton-Perrin says. CMS also has its own similar requirements, he says.

Most policies specify corrective action for physicians who don’t comply, Trosty says. Lack of adherence and/or action by a facility when the policy is violated can create enhanced liability in a lawsuit that involves those records, he says. “[Facilities] must adhere to their policies and procedures when it comes to reducing potential liability,” Trosty says.

Orient says. “Good medical practice is to dictate ASAP, and errors are less likely ... [J]ust recognize that anything in the record — or lacking — can be used against you, whether material to coding or not.” (Criminal charges are being considered against an oral surgeon for his infection control practices. Look for an update in an upcoming issue of Same-Day Surgery.)