I Was Sued for Medicare Fraud-Over an Innocent Error
Keskinen, Rosemary S., Medical Economics
Unfairly charged as a swindler by a former patient, the author was forced to fight a tortuous and costly legal battle to clear her name.
Like most doctors, I've always lived in dread of a malpractice suit. But, I discovered, being charged with Medicare fraud and abuse can be even worse.
These charges challenge our integrity-accusing us of cheating not only the system but our own patients.
If you've been accused of fraud, as I was, you don't talk about it for a long time. My suit made me miserable for the better part of a year, and it cost me nearly $10,000. I didn't deserve to be put in the position I was, but it happened anyway. That's why I've decided to break my silence: If this could happen to me, it could happen to anyone.
A name from the past sets events in motion
My nightmare began on a May morning in 1995. I'd been asked by one of my partners to come to the office early. The request hadn't alarmed me, since I was often asked to confer on issues involving my small satellite office. (I'd sold my two-doctor practice to a larger dermatology group the year before.)
As I walked into the meeting, I noticed the group's two senior partners and the practice administrator. They weren't smiling.
"Does the name Stanley Szabo mean anything to you?" one of the partners asked me.
It did. Szabo-not his real name-was an elderly diabetic widower who'd come to me with familiar geriatric complaintspruritus, leg ulcers, stasis dermatitis. I followed him for many months, until he was admitted to a nursing home some distance from my office. Although he could be cranky at times, we'd parted on good terms about a year before. I hadn't seen him since.
Szabo and his attorney, the partner informed me, had brought a Medicare fraud suit against me on behalf of the US government. I'd been accused of billing for services that were either disallowed or never provided. I was also accused of trying to recover additional payments for services that were already reimbursed.
Even though the alleged fraud took place before I had sold my practice, my new dermatology group had been named in the lawsuit. That explained my partners' grim mood. I could do nothing to allay their concerns, since I was as much in the dark as they were. Stunned, I asked myself why Szabo would want to sue me.
His stasis ulcers had required weekly and sometimes twiceweekly Unna boot changes. But his diabetes-related blindness meant he couldn't drive, and, apparently, no family members were around to help. That left him dependent on our community transportation vehicle to get to the office. When that wasn't available, members of his church would drive him. In time, we also arranged weekly nurse visits.
More than a few times, however, all systems failed, and I made house calls to soak his leg and change his boot. On such visits, he wasn't eager to let me depart. Living alone, he was so obviously in need of companionship and sympathy that I often ended up staying longer than I'd intended. Truly, I had gone the extra mile for this patient, which made his complaint against me all the more difficult to understand.
Accusations of a pattern of fraud
Returning to my office later that May morning, I noticed a large envelope-sent by registered mail-bearing an attorney's name and address.
Inside was a copy of the complaint filed against me in US District Court by my former patient, "in the name of the United States Government." It accused me of billing for an ultraviolet-light treatment I'd never provided, and of "balance billing" for charges not covered by Medicare.
Worse, the complaint described these incidents as part of a larger pattern of fraud and abuse. Allegedly, this pattern involved not only the plaintiff but other Medicare beneficiaries, as well.
I was stunned. Medicaremuch less Szabo-had never told me any of this. If the court found against me, the complaint said, I'd have to pay a judgment equal to three times the alleged damages the government had sustained, plus a civil penalty of $5,000 to $10,000 per violation. I'd also be required to pay the opposing side's legal costs.
And what did the plaintiff stand to gain from all this? He'd be awarded from 25 to 30 percent of any award or settlement.
The whole situation seemed outrageous!
I had always handled billings as carefully as possible. I'd attended seminars offered by my local academy of medicine and my specialty group. To take care of day-to-day billing, I'd first used a large service, then switched to a smaller one. It was run by a woman-Lea-who had also been the parttime receptionist for my two-member practice. She billed for several doctors in the area and had an excellent reputation. I was impressed by her knowledge and organization.
I called Lea, who had kept my old bills. She remembered Szabo, but didn't link his name to any billing-related problems. She promised to investigate further, so I waited tensely for her return call.
When she phoned that afternoon, Lea seemed upset. In fact, there had been a billing problem. It involved a $200 balance that one of her employees had mistakenly-and repeatedly over several months-billed to Szabo. The bill was for Unna boot supplies, and it was clearly disallowed by Medicare. Lea had discovered the error in a routine check of billing records. It had caught her eye because the amount of the balance seemed too large for a patient with Medicare and good supplementary insurance.
Lea wrote off the balance on Szabo's billing statement. Then she notified HCFA of the error
But where was Medicare's reply? My guess was that HCFA had responded but had addressed its reply to my new group, which hadn't forwarded anything to Lea. As for the patient himself, we hadn't heard a word from him.
Lea and I also solved the mystery involving the ultravioletlight treatment. In fact, Szabo had been billed for the treatment on the date he claimed. An examination of the charge ticket, however, revealed the problem: "Unna boot" and "light treatment" appeared on consecutive lines, each with its own check-off box. In checking the box for the Unna boot, I had inadvertently run over into the other box. That caused Lea's clerk to bill for the wrong service. Ironically, the mistake cost me money, since the light treatment was less expensive than the Unna boot change.
Certainly, a mistake had been made, but who could possibly interpret something that was so clearly accidental as a scheme to defraud Medicare? Surely, I must be overlooking something.
That led me to a more thorough review of Szabo's medical records. They were quite complete, with all charges properly justified, as far as I could tell. If anything, I had undercoded for his services.
A mystery woman enters the suit
Rereading the complaint raised more questions than it answered.
I was especially curious about a reference to Szabo's goddaughter, who had apparently contacted my office to inquire about the $200 bill for Unna boot supplies. Who was this mysterious woman? My records indicated that Szabo had no family nearby, at least none who could help drive him to the office or manage his health care. But his goddaughter was available, it seemed, to help out in other ways. Was this fact significant? Had she initiated the suit and, if so, why?
And why was the suit filed by a private citizen and his attorney? Surely, if they thought I'd done something wrong, they would have first reported me to Medicare. If they had in fact reported me, why hadn't the agency's carrier sent me a notice of incorrect billing?
Lea was equally mystified. She said HCFA sent out such notices all the time, along with a request to refund all or part of an improper payment. Typically, no adverse consequences followed, as long as the inadvertent error was corrected promptly. In our case, Lea had corrected the billing error as soon as she detected it, even before receiving a notice from Medicare's carrier In any case, the incorrect billing hadn't resulted in any payment. Indeed, we never received anything we weren't entitled to-we received less.
Clearly, the time had come to consult a lawyer
The plaintiff's attorney: a woman on a mission
I retained an attorney at one of the city's top health-care firms. After listening to my version of events, he assured me that the plaintiff probably didn't understand Medicare's billing rules. As for the plaintiff's attorney, she probably wasn't aware of the complete facts of the case, or she wouldn't have proceeded. A phone call to her, he said, would probably clear up the whole matter. He promised to get back to me soon.
His call the next day was much less reassuring. The plaintiff's attorney, he informed me, sounded like a zealot. The way she read things, doctors like me were deliberately toying with the Medicare system. As defrauders of helpless old people, we were unethical and un-American, and she was eager to take our like to court.
This latest assault on my integrity was especially hard to take. For a dermatologist, I see relatively few patients each day. I make house calls and nursinghome calls, and see to it that I spend enough time with each patient. My fees are on the low end of average for my area. Indeed, making piles of money has never been a priority for me. If there was ever a physician who didn't fit the profile of a defrauder, it was me.
My attorney persisted in the reassuring belief that the suit was more of a nuisance than a genuine threat. But I was troubled by his admission that his firm had never represented a client in a suit like this.
Now that I understood the process better, I realized that, on top of the legal fees I was racking up, I could end up in serious financial trouble. All the more reason to be sure my case was in good legal hands.
I called an attorney at the Ohio State Medical Association and detailed my case. The suit was the first in the state to be brought by a private citizen on behalf of the government, she told me, although she expected there could be more in the future.
She pointed out that mistakes were never permitted in Medi-care billing, so I was probably at fault whether or not I'd received any improper payments. She even suggested that the judge assigned to the case might prefer that it proceed to trial, since a court's ruling could set a precedent for future Medicare civil suits. She assured me that my attorney and his firm were among the best available, and that I would be well represented. To help defray some of my legal expenses, she suggested that I sue my billing service. She then wished me luck, and asked that I let her know how things turned out.
Support from an old colleague, blame from newer ones
I was more anxious than ever. I certainly wasn't eager to be the center of a precedent-setting case. All I could think of was that my husband, our three children, and I were facing financial ruin. I couldn't expect my malpractice insurance to cover me in such circumstances. My only chance at financial relief was suing a very nice, competent woman who'd always done her best for me. That wasn't a morally acceptable alternative.
In my agitated state, I found support not only from my husband but from my original partner, now also a member of the new group. She was as outraged as I was by the accusations, and, though she didn't have to do it, she felt obligated to shoulder half of my legal expenses. We'd been in practice together when the billing problem occurred, she reasoned, so my ordeal could as easily have happened to her.
What a relief it was to be able to share my fears at each new unsettling turn in the road! I wasn't able to do that with my other colleagues and friends. I was simply too embarrassed.
In fact, certain members of my new group blamed me for the foul-up. How could I be so careless? they suggested in so many words. Yet I knew that my business practices were as careful as theirs. In the end, the practice's attorney managed to have the group's doctors dropped from the lawsuit, although not before relations between us soured. Eventually, we went our separate ways, in large part because of the discontent sown by the lawsuit.
A failed meeting leads to a day in court
Meanwhile, my attorney was pressing for a meeting with Szabo's. Despite their earlier exchange, he believed she could still be persuaded the suit was groundless.
He arranged an informal conference with her, inviting Lea and her attorney along. Because of the state of my emotions, he urged me not to attend. If questions arose, he said he would phone me.
The meeting confirmed some of my initial suspicions. Szabo's goddaughter was indeed at the center of things. She'd begun handling his affairs after he was admitted to the nursing home, the plaintiff's attorney said. Going through his Medicare bills, she noticed he'd been billed for Unna boot supplies, which Medicare expressly disallowed in its EOB.
She had called my office several times to resolve the matter, she claimed, but had never received a satisfactory response-a situation I found curious. Nor, she claimed, did Szabo ever hear from us that the error was corrected. We had corrected the bill, of course, although Lea had no cause to notify anyone about it. But Szabo's attorney chose to view the correction as a belated defense against just this kind of lawsuit.
Clearly, the meeting had not gone well. We had no choice but to go to court. Erica, one of the firm's younger attorneys, took over my case. Despite her junior status, she was well-versed in the intricacies of Medicare billing, which I found reassuring.
At the pretrial meeting, the plaintiff's attorney softened her position only slightly. While the records review might not reveal evidence of fraud, she observed, a pattern of reckless disregard for Medicare rules might still exist. To test her allegation, the judge ordered us to allow the plaintiff's attorney and representatives from our side to go through my billing records.
Guilty until proven innocent
The judge's order was outrageous: Apparently, "being innocent until proven guilty" didn't apply to Medicare providers.
The search of my billing records raised another troubling issue. In allowing the plaintiff's lawyer to root around my records, wasn't I violating my patients' confidentiality? In the small Ohio community where I practiced, the attorney was bound to know many of the patients whose records she'd ask to see. (The next time around, I feared, she would sue me on behalf of those patients.)
When Erica raised the confidentiality issue, the judge placed a protective order on the records. She permitted the plaintiff to ask Medicare for a sample of the patients I'd seen during a three-month period. Choosing among Social Security numbers, the plaintiff's attorney would pick 100 patients at random, and I'd supply the records, with names obscured to preserve confidentiality
The meeting to review the medical records took place on Dec. 29, seven months since I'd first heard about the suit. The reviewers included Lea, her attorney, mine, and, of course, Szabo's. My role, once again, was to be available by phone should any questions arise.
Besides the billing records, we were called upon to provide EOBs, phone records, and even medical records to help substantiate disputed claims. Fortunately, only the billing records and EOBs were necessary at this stage.
While the meeting took place, I saw patients and waited anxiously to hear from my attorney. The call finally came around noon. With obvious glee, my attorney told me they hadn't discovered a single billing error among the 100 records they examined.
Still, Erica was worried. Although the plaintiff's attorney seemed mollified, she had to consult with the US Attorney's office before taking final action on the case. Plus, she did request one more record because of a suspected discrepancy. It turned out to be nothing more than a balance Lea had written off for a patient of mine who had died.
A dismissal, but questions and fear linger
How long would this nightmare drag on?
Lea shared my concern, in part because of the impression Szabo's attorney had made on her. Never having met or spoken to her myself, I'd assumed all along that this young lawyer was either a wild-eyed fanatic, as my initial lawyer had characterized her, or a money-grubber. But Lea painted a significantly different picture-an idealistic young woman who genuinely believed I was a schemer. For this reason, Lea reasoned, she seemed determined to bring the suit to trial.
Lea's reading of the situation disturbed me. Although it was unlikely that any further incriminating evidence would be introduced, I dreaded the prospect of having to convince a jury I wasn't a crook.
Fortunately, I wouldn't have to. Later that afternoon, the plaintiff's attorney filed a motion to dismiss. On Jan. 11, I finally received the word I'd been waiting for: The judge agreed to dismiss the case.
Now, three years later, several unresolved questions about the case still haunt me.
I'm still unclear what triggered the suit. Was Szabo's goddaughter treated brusquely when she first called my office to inquire about the $200 bill? Anything's possible, but my friendly, helpful employees had successfully handled his cranky calls regularly, so it doesn't make sense that no one would have taken the time to help her
Perhaps Szabo had been dissatisfied with the medical care he'd received from us. If so, nothing in his records-which I've reviewed several times-gives any indication why he would have been.
Then there's the financial motivation: Did someone notice my billing errors and conjure up visions of a financial windfall? I'll probably never know for sure.
I'm troubled by how close I came to disaster. Had Lea been less well-organized, my ordeal could have ended quite differently. As it was, my legal bills were close to $10,000, despite having a reasonable attorney
The complexity of current Medicare laws puts physicians at a disadvantage. Certainly, adhering to the letter of the law and being strictly honest will help. Indeed, in the end, these things saved me. Still, there's no foolproof way of avoiding the nightmare I went through.
That is the really scary part.…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: I Was Sued for Medicare Fraud-Over an Innocent Error. Contributors: Keskinen, Rosemary S. - Author. Magazine title: Medical Economics. Volume: 76. Issue: 6 Publication date: March 22, 1999. Page number: 70+. © Advanstar Communications, Inc. Jan 23, 2009. Provided by ProQuest LLC. All Rights Reserved.
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