In the words of Ronald Reagan, “Either you will control your government, or government will control you.”
These words should be shouted from every mountaintop and should be followed with the words, “end the war on doctors and health care providers.” Over the past several years, the Department of Justice has waged a vicious war against doctors and other health care providers with its own definition of what is and what isn’t “medically necessary.”
As we all know, over the years, as the result of the exploding numbers of lawsuits against doctors and health care providers, those in the medical profession have been forced to practice defensive medicine. At the same time, state and federal regulators have written thousands of pages of regulations and rules which define what doctors and health care providers are required to do in order to obtain reimbursement for the medical services they provide.
So, what is wrong with regulations? Nothing, if you want your doctor to spend hours every day, week, month, or year reviewing regulations instead of providing patient care. Unfortunately, as a direct result of a national war which is being waged against doctors and health care providers, defensive medicine means so much more than the fear of a civil lawsuit for medical malpractice. Instead, it means that “good faith” medical decisions made by your doctor today might result in your doctor or health care provider being hauled into federal court to face criminal charges for making a medical decision which will now be second guessed by an untrained federal prosecutor or government bureaucrat months or years later.
Why should we be concerned? Well, let’s take the recent case of Dr. Richard Paulus a cardiologist from Ashland, Kentucky. Dr. Paulus was targeted by untrained federal prosecutors for performing what were claimed to be unnecessary diagnostic heart cauterizations. As a result of years of investigations, Dr. Paulus was charged with dozens of counts of health care fraud. After years of fighting the charges, Dr. Paulus’s case went to trial and he was convicted because of evidence which the government presented that although Dr. Paulus believed the medical procedures were necessary for his patients, the government’s experts disagreed.
While Dr. Paulus’ conviction should be the end of the story, in the words of Paul Harvey, let’s look at the rest of the story. Several weeks after his conviction, after carefully considering Dr. Paulus’ conviction, the federal district judge who presided over the case concluded that the health care fraud statute is “not intended to penalize a person who exercises a health care treatment choice or makes a medical or health care judgment in good faith simply because there is a difference of opinion regarding the form of diagnosis or treatment.” Thankfully, for Dr. Paulus, the presiding judge correctly concluded that not only should medical decisions be left to doctors, the decision also stands for the proposition that federal prosecutors are not doctors or health care providers and should not interject themselves into medical decisions.
So why should any of us care about this case, or any of the other cases which have literally destroyed the reputations of good, honest doctors and health care providers? The answer is that if doctors and medical providers live in fear of being criminally prosecuted and sent to prison for making good faith medical decisions, then the ability of doctors and health care providers to provide medical care as we know it today will soon come to a screeching halt.
When looking at Dr. Paulus’ case, and other similar federal prosecutions of doctors and health care providers, each of us should understand the “chilling effect” of these prosecutions is more far reaching than any of us will be able to comprehend.
Growing up in the 50’s I can still remember the polio epidemic which swept across the country. For those of you who might not remember, as a direct result of the work of Drs. Jonas Salk and Albert Sabin, a vaccine was discovered which by the early 60’s was available and distributed in a sugar cube. Were the decisions of the medical community to provide this vaccine to hundreds of thousands of children a decision which should have been made by doctors and health care providers? Or should those good faith medical decisions of Dr. Salk and Dr. Sabin to distribute the vaccine have been made by federal prosecutors? Of course, the answer is a resounding NO!
Recently, two other medical pioneers in addiction medicine, Dr. Bryan Wood, and Dr. Robin Peavler, and their three business partners, found themselves in the crosshairs of federal prosecutors for “medically necessary” decisions which were made in late 2010 and 2011, for patients’ at addiction treatment clinics across Kentucky.
After spending more than five years and spending literally hundreds of thousands of dollars investigating these doctors and their business partners, the case finally went to trial this past month. After a three-week trial, and nearly forty government witnesses, the jury concluded that of more than 700,000 tests which were ordered to treat patients at the addiction treatment clinics, the doctors and their partners were only guilty of improperly submitting 17 claims for reimbursement.
So why should anyone care? Well, everyone should care when federal prosecutors interject themselves into medical decisions simply because these untrained prosecutors have arbitrarily decided that some tests or medical procedures were not medically necessary. The simple solution which is already written into the thousands of pages of regulations is that if an insurance company decides that a medical procedure was not medically necessary for reimbursement purposes, then the insurer should simply deny payment for the claim.
Unfortunately, for federal prosecutors’ the denial of reimbursement for a claim is not enough. Instead, federal prosecutors have decided that not only should reimbursement for the claim be denied, but also, the reputations of those doctors or medical providers should be destroyed; that these honest men and women should be subjected to years of investigations which result in their financial ruin; and finally, these same prosecutors believe that these otherwise honest men and women should be sent to federal prison.
In the words of Edmund Burke, “The only thing necessary for the triumph of evil is for good men to do nothing.” Hopefully, each of you will agree that federal prosecutors have gone too far. Hopefully, you will agree that doctors and medical providers should be able to make medically necessary decisions for their patients without fear of being sent to federal prison.
It is time for federal prosecutors to return to prosecuting crimes. It is time for federal prosecutors to end their practice of second guessing the good faith “medically necessary” decisions of honest doctors and medical providers.
Finally, if you agree, please join me on the mountaintop and shout to everyone who will listen that enough is enough.
Mark Wohlander, a former FBI agent and federal prosecutor, practices law in Lexington.