Cathy from Oakland asks this week's question:
Q: "I am a doctor and I work for a sizable medical group. I don't want to say too much that might identify me as I am afraid of retaliation. The group I work with orders tests for many older Medicare patients who don't need them. Some of these tests have risks associated with them that can prove fatal. Sometimes I see the owner of the clinic create bills for services not rendered or for more time than is spent. I have tried to raise these concerns but have been pressured to keep my mouth shut. What should I do?"
A: Cathy, while I appreciate your dilemma, you swore an oath when you became a doctor to commit no injustice against your patients and to not bring disrepute to your profession. I understand, having represented doctors who have been retaliated against for seeking to expose fraud and/or patient abuse, that physicians who blow the whistle often have their careers ruined. A doctor who reports his or her boss can have a career ruined by a false, retaliatory report made to the Medical Board.
I have seen cases where women have reported doctors for sexual harassment only to have the male doctor and his colleagues write reports questioning the female physician's competence and mental fitness. The medical field can be ruthless in protecting its secrets. This column will discuss how to address false claims that defraud the government. Next week, I will discuss statutes designed to prevent retaliation for advancing patient protections.
The Criminal Health Care Fraud Statute (United States Code Title 18, Section 1347) prohibits knowingly and willfully executing, or attempting to execute, a plan designed to defraud any health care benefit program. It also prohibits using false pretenses to collect improper payments from any health care benefit program.
Proof of actual knowledge or specific intent to violate the law is not required. Penalties for violating the Criminal Health Care Fraud Statute may include fines, imprisonment or both. Your participation in any such scheme, even if you believe you were pressured to do so, may lead you to be implicated and result in your imprisonment, loss of your license or civil financial penalties.
Under United States Code Title 42, Section 1320a-27a, people who commit fraud may be fined $10,000 to $50,000 per violation. Under the federal False Claims Act (USC Title 31, Section 3729-33), anyone who knowingly presents a false or fraudulent claim for payment is, in addition to civil penalties, liable to the government for three times the amount of the fraud.
Under the federal False Claims Act, an individual may file what is referred to as a qui tam action on behalf of the government to recover money that has been taken by fraud. This applies to all fraud, whether it is against Medicare, the Department of Defense or any other agency.
If you are an individual who has unique information about a fraud being committed against the U.S. government that is not already in the public domain, you can file a lawsuit on behalf of the government in U.S. District Court to recover the ill-gotten gains.
The lawsuit, and all information supporting the claim, must be sent to the attorney general or Department of Justice for investigation so they can determine whether they wish to take over the prosecution as the intervenor.
If the government intervenes, the Department of Justice assumes all responsibility for the investigation and prosecution. If the government does not intervene, you can proceed on behalf of the government to prove the fraud and recover the funds.
If there is a successful prosecution of a false claim action the relator who brought the action to the attention of the government is entitled to receive 15 to 25 percent of the funds recovered as a reward for having brought the action, plus whatever attorney fees he or she may have incurred.
So, Cathy, for all the right reasons, you should take action to put an end to this. You can either contact an attorney to assist you in pursuing a qui tam action (california-whistleblower.com) or report the fraud directly to Medicare at 800-HHS-TIPS (800-447-8477).
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.