While our firm focuses on personal injury, workers’ compensation, and criminal defense, over the years, our practices have become more focused on sub-areas within those main practice areas. It’s almost like someone who has a very particular brain tumor that requires surgery. What makes more sense? Seeing a neurologist (brain doctor)? Seeing a neuro-surgeon? Or would it be better to see a neuro-surgeon who specialized in that particular type of brain tumor?
With lawyers, it works the same way. Over the years, we’ve begun to focus on more specialized sub-areas, and in the criminal defense realm, one of those sub-areas is healthcare fraud. Specifically, healthcare fraud where the defendant is a doctor, typically serving as a medical director for a hospice or home health agency.
Over the past few years, the Department of Justice has prosecuted several hundred doctors for healthcare fraud, specifically those doctors who serve as medical directors for hospices and home health agencies. While there are certainly situations where the DOJ has brought valid charges against physicians, a good many of the prosecutions rely on loosely tying the physician to the healthcare fraud, even where there is no proof that the physician actually knew that others were engaged in healthcare fraud activity. In those cases, there are certain issues that keep on showing up.
One of the common themes is that the doctor serves only as a medical director. What that means it that the doctor is pretty much going back, reviewing patient records, and making sure that there is enough information to support a diagnosis (what a person is suffering from) or a prognosis (in the case of hospice care, how long the patient is expected to live should the underlying condition run its natural course).
Another commonality is that the DOJ typically alleges that the doctor/medical director engaged in robo-signing. In those instances, the DOJ alleges that a doctor blindly writes prescriptions or signs off on key paperwork without first making an individualized determination as to whether the prescriptions are necessary or the paperwork is accurate.
Perhaps the greatest commonality is that the doctors are too trusting. Given the nature of the medical profession, doctors must trust their nurses or nurse practitioners, and typically trust that if someone hands them certain paperwork or says that something is necessary, then the doctor will trust that nurse’s observations. The problem, though, is that that trust is usually what lands the doctor in hot water, because they did not realize that they were being taken advantage of.
For example, regulations concerning hospice do not require that a doctor actually lay eyes on the patient. Instead, as a matter of practice, a nurse practitioner will typically see the patient, fill out the necessary medical chart, send the patient home, and then give the chart to the doctor for final review. In the context of hospices, if after reviewing the medical chart, the doctor believes that the patient is terminally ill (will die within six months if the condition runs its natural course), then the doctor may sign a certificate of terminal illness or order that the patient be placed in hospice care. But here’s the problem: the doctor trusted the nurse practitioner. Being a busy doctor, the doctor would have no reason to distrust the nurse practitioner, especially if the medical chart shows enough information to support a diagnosis and subsequent prognosis. In other words, the nurse practitioner could easily take advantage of the doctor, give the doctor false information, and the doctor would never know that he was a pawn in the nurse practitioner’s criminal activity… at least, not until the DOJ knocks on his door and the doctor learns of the activity.
So what can doctors do to make sure that they are protected from allegations of healthcare fraud? Here are some helpful tips:
- Don’t robo-sign. This seems like a no-brainer, but let’s be honest, doctors are busy. They have many patients and obligations to attend to, which means that they are constantly pressed for time. One of the best things that a doctor can do is slow down. Take the time to review the patient chart before signing off on anything. Along the same lines, NEVER use a signature stamp.
- See the patient. Even though the regulations, for the most part, do not require that a physician lay eyes on the patient, take the time to occasionally check on the patient directly. If you are pressed for time, consider doing a random follow-up with a random patient via phone, at the very least to discuss what is in their chart.
- Stay in your lane. Don’t be more than the doctor or the role that only a doctor can do. Stay away from anything having to do with the management structure of the hospice or home health agency, and certainly stay away from anything that has to do with billing.
- Conduct random patient file audits. This goes along with Tip # 2, and may be a little tedious, but it is worth taking the time to do. It is not unusual in healthcare fraud cases to see instances of forgeries, especially forgeries of doctors’ signatures, including several doctors’ signatures in the same patient file.
- Document. Any time you do something, document it. If you reviewed a patient’s file for a few minutes before signing off on a certificate of terminal illness, document it. If you spoke to someone about a concern regarding a patient’s file, document it. If something about the patient does not match up with the paperwork given to you, document it.
- If you see something, say something. Let’s face it, a doctor must trust the people that he works and interacts with. This is especially true in the hospice and home health settings. Even though the doctor may trust his co-workers, it is always a good idea to follow the phrase made famous by Ronald Reagan: trust but verify. Always make sure that everything is verified. And if it is not, then you have to say something. Look into the inconsistencies, and if it looks like something is not quite adding up, then chances are that you need to report it.
Doctors are in a unique position based entirely on trust. People trust doctors to make the right decision, to give the right diagnosis, and to help make people better or to make their quality of life better. But doctors are human, too. Just like anyone else, they can easily be taken advantage of, especially in an industry that relies almost exclusively on trusting the people that they work alongside.