One of the highest profile health care fraud trials in a generation is nearing conclusion in a Dallas federal courtroom against the now-shuttered Forest Park Medical Center and surgeons who practiced there. Now in its seventh week, prosecutors allege that five doctors and four other officials orchestrated an illegal kickback scheme that put tens of millions of dollars into their pockets. While the focus now turns to an expected jury verdict, health care practitioners – and their patients – would be wise to learn from the mistakes of their peers and adjust course accordingly.
The allegations are salacious and speak to an opaque health care delivery system that has become so complicated that few outside the industry truly understand it. Prosecutors allege that physicians were given kickbacks and valuable “marketing dollars” in exchange for cherry-picking patients with generous insurance coverage and funneling them to Forest Park’s luxury operating rooms for lucrative out-of-network medical procedures.
In court filings, the lead prosecutor noted that the indicted surgeons “treated their patients like commodities and failed to disclose these bribe payments to their beneficiaries. Such conduct is – and always has been – illegal under the laws of various states.”
While 10 of the 21 indicted individuals pleaded guilty before trial in hopes that their cooperation would result in reduced sentences, the nine surgeons and administrators who stuck it out for trial are pushing back vigorously. The case will likely be before the jury by Thursday, and at this point, it is anyone’s guess as to how the jury might decide. Nonetheless, the import is clear: the government means business when it comes to health care fraud and is focused on suspect arrangements in the health care space.
This is hardly unusual. As former prosecutors with health care fraud experience and as experienced health care attorneys, we have spent considerable energy both prosecuting, and now defending, allegations of health care fraud. This ongoing criminal prosecution should be a warning siren for health care practitioners. Here are a few practical pointers:
- Documentation matters. When fraud prosecutors review medical practices, they often start with a close look at patient files. As doctors know well, documentation matters – not just in the exam room, but also the courtroom. Doctors must make sure patient files fully and accurately reflect the work they actually do.
- Scrutinize financial relationships. As many have learned the hard way, well-intentioned and otherwise legitimate business deals that would be lawful in other professions might be inappropriate – and illegal – in health care. For example, monetary rewards for business referrals are not only commonplace in many other professions, they’re celebrated. Not so in health care. Carefully review existing financial relationships and make sure those arrangements will pass regulatory muster.
- Be extra mindful of rules regarding opioids and controlled substances. The government has placed an intense focus on opioids and the physicians who prescribe them. Doctors should not be surprised by the attendant scrutiny.
Will a successful prosecution in this case take us a step closer to a more efficient and transparent health care system? A consistent enforcement program will eventually get the industry’s attention. But the public also has a role to play. As consumers navigating an unwieldy health care system, we understand that it can be difficult to delineate between trustworthy doctors and those who are out to line their pockets. The vast majority of health care practitioners are honest and well-intentioned. But consumers must carefully scrutinize their own documentation after each health care visit, including their explanation of benefits, for example. If there is a discrepancy, they must speak up. They also should do their best to research any doctor they are visiting.
As long as health care fraud remains one of the drivers of high costs of medical care, fraud enforcement will be here to stay. With government prosecutors likely collecting a vast amount of institutional knowledge from this trial, we expect to see more of these types of cases in the future. Clinicians would be well-served by heeding the warning signs and carefully following the letter of the law. As the old adage goes, an ounce of prevention is worth a pound of cure.
Dick Sayles is a trial lawyer and Wendi Rogaliner advises hospitals, physicians, and other providers on health care compliance matters; A. Lee Bentley III and Jason Mehta are former prosecutors who also contributed to this article. All are with law firm Bradley LLP.