CBC, UR IN ANALYSIS We are Doctors and Lawyers defending Doctors, Nurses

The big news in the world of insurance fraud this week is the announcement of the creation of the Consortium to Combat Medical Fraud.

The Consortium is a joint project of the coalition, the National Health Care Anti-Fraud Association and the National Insurance Crime Bureau. It’s the first time that property-casualty insurers and health carriers have come together in a meaningful way to better detect and investigate fraud by medical providers.

Activities underway include cross-matching data on suspected fraud cases, cross-training investigators, getting insurers comfortable with sharing information across industries and conducting research.

A joint education program last week drew more than 60 investigators from both sides. Many eyes were opened about the different approaches the two industries take to resisting bad claims, detecting fraud and dealing with fraudulent medical providers.

Case studies have made clear the advantages of sharing intelligence and developing joint investigative strategies. One obvious benefit is that prosecutors are more likely to take cases that cross industry lines.

A full story on this effort will soon be published in our quarterly newsletter, Fraud Focus, also available online.

Facing a formal Accusation of unprofessional conduct before the Medical Board of California, Fullerton physician Harley Sterling, M.D. has surrendered his license to practice medicine. The stipulated surrender of his medical license was accepted by the board on March 14, 2005 and became effective on March 21, 2005.

In a November 1999 First Amended Accusation, the board accused Sterling of violating multiple sections of the Business and Professions Code, including section 2234(b)(c) (d) (gross negligence, repeated negligent acts, and incompetence) in his care and treatment of two patients. One patient, while under his care, underwent approximately 32 procedures on her breasts. During all surgical procedures performed which involved injection of saline or silicone gel into intact breast implants, Sterling directly punctured with a syringe needle the outer shell of the silicone implants, thereby causing leakage of implant material into the surrounding tissue. He also augmented the volume of the implants with saline or silicone gel, although it was never intended by implant manufacturers and was clearly prohibited by the federal Food and Drug Administration. On a second patient, Sterling used a homemade "nutcracker" device (consisting of two ax handles connected by a small metal bar at the top) to perform a closed capsulotomy. This procedure is commonly performed to breakup the fibrous scar capsule around the implant. Sterling failed to explain to the patient the potential risks and complications from using the device, did not obtain verbal or written approval from the patient, and failed to provide appropriate follow-up care to ensure no complications occurred from using this device.

Pursuant to a Stipulated Settlement and Disciplinary Order in May 2000, the board placed Sterling on five years' probation for unprofessional conduct. During the term of probation, he was required to comply with the board's Probation Surveillance Program along with terms and conditions, some of which included: enrolling in and completing the full Physician Assessment and Clinical Education Program (PACE) at the University of California, San Diego School of Medicine and undergo assessment, clinical training and examination with a focus, where possible, on plastic and reconstructive surgery, within 90 days; on an annual basis thereafter for each year of probation, submitting to the board an educational program or course not less than 40 hours per year; enrolling and passing a board-approved ethics course; having a practice monitor for the first two years of probation; obeying all federal, state and local laws, all rules governing the practice of medicine in California, and remaining in full compliance with any court-ordered criminal probation, payments and orders; submitting quarterly reports advising of his compliance with his probation and any court-ordered probation; and appearing in person for interviews with the board.

Sterling's probation was subject to revocation for failing to obey all laws, submit quarterly reports to the board, pay cost recovery to the board for investigative and prosecution costs as well as the costs associated with probation monitoring. In addition, Sterling was subject to discipline for performing surgeries in an outpatient center without a transfer agreement and without admitting privileges at a local licensed acute care hospital. According to Sterling's own surgical records, he performed over 100 surgical procedures in his outpatient surgery center between January 6, 2003 and August 26, 2003 without the required transfer arrangement and without the required liability insurance coverage for malpractice claims.

Sloth n. 1. Aversion to work or exertion; laziness; indolence; sluggishness.

This is the second of seven articles in the series "Preventive Medicine and the Seven Deadly Sins: Avoiding Discipline Against your Medical License." How, you may wonder, can the "sin" of sloth be extrapolated to the practice of medicine? Especially, you highlight, since the mere accomplishment of completing medical school, internship and residency itself is seeming prima facie refutation of the definition of sloth.

Sloth can be manifested in several ways. Sloth most often displays itself as failing to maintain adequate and accurate medical records. Sloth can also be failing to remain up-to-date on journals and current standards of medical practice. Sloth can be over-delegating to support staff or relying exclusively on ancillary staff to review laboratory results. Sloth can be disorganization — failing to correspond diagnostic test results with a patient's file. During the past two years, I've seen two cases where the physician missed critical laboratory or radiology data on two or more occasions. Both cases resulted in patient deaths (one from cervical cancer, one from lung cancer). Both physicians had at least two sets of data, and two opportunities, to review the information that would have lead to a timely diagnosis. Essentially, sloth is failing to appreciate the details that make a medical practice function safely and professionally.

I will concentrate on record keeping because it is the most pervasive problem we investigators see. Did you know that aside from technical violations such as failing to notify the board of your change in address, or operating without a fictitious name permit, the most common violation for a citation-and-fine is failing to maintain adequate and accurate medical records? Are you surprised to know there is a section of law that sanctions record keeping?

Business and Professions Code section 2266 reads: "The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct."

During the past three years, 93 citations have been issued to physicians for failing to maintain adequate and accurate medical records. (Note: a citation-and-fine is not considered discipline. It is not reported to the National Practitioner's Data Bank, although it is disclosed on the board's Web site.) Moreover, many physicians against whom an accusation is filed (this is discipline and is reported to the NPDB as well as disclosed on the Web) are charged with failing to maintain adequate records in addition to other quality-of-care violations.

Unfortunately, I have no riveting stories to report about record keeping violations. I can tell you, however, that we investigators can visualize your dilemma. It's not necessarily sloth, per se. You're in the office, patients are stacked up in the waiting room, you know you have to chart the visit but you're so busy and the HMO/PPO's aren't paying you for charting (but just wait until you need to justify your bill...) Lackadaisical charting might be an area where a corner can be cut, where time can be saved. After all, you're being compensated for the number of patients you see, so cutting a few corners and omitting a few details from the patient's record, or failing to keep a record at all can't be that ominous of a proposition. It's not that you're lazy, it's more like you're busy...

The California Medical Association published Document #1135 in January 2006 which sets forth guidelines for the contents of medical records. Why is the quality of medical records so important? The CMA's publication stresses that not only do they serve as a basis for planning and maintaining quality of patient care; they often are the best defense of a physician in a medical malpractice action. Medical records also serve as a basis for reimbursement, and incomplete records interfere with the ability of a physician's peers to perform peer review. From the Medical Board's perspective, very often a physician who is the subject of a complaint can stop a case from going to the field for further investigation because their excellent recordkeeping skills answered all of the reviewer's questions. If our initial reviewers in the Central Complaint Unit do not have information to determine the standard of care has been breached, the case must be referred to the field, assigned to an investigator, and the resolution of the complaint takes much, much longer.

For convenience, I will share several excerpts from CMA's Document #1135. A variety of organizations are cited in the document as having jointly developed the following principles for medical record content:

Additionally, a physician should document the fact that the patient's consent and informed consent, when required, was obtained. (author's note: Also, don't forget that accuracy of medical records means documenting errors, too. Failing to record an adverse event can result in adverse consequences to you. If you or your staff make an error in charting, it's important to simply place a line through the error, date it, initial it, and make a comment indicating where the correct entry may be found.)

The importance of proper medical record keeping cannot be emphasized enough. It may seem time-consuming to add that extra documentation, but I can guarantee it will save you more time (and money) in defending yourself and justifying your insurance claims. Just remember this: if you are ever the subject of a complaint, your outstanding medical record will serve a multitude of purposes. Not only do they serve the functions enumerated in the CMA document, they have the potential to substantially expedite the resolution of an investigation and leave your peer reviewers impressed with the high quality of your medical care!

Facing formal Accusations of wrongdoing by the Medical Board of California, San Diego physician Egisto Salerno, M.D. has surrendered his license to practice medicine. The stipulated surrender of his medical license is effective on April 29, 2003.

Salerno was placed by the Medical Board on two years' probation beginning June 18, 2001 for an assessment and plan for a patient inconsistent with the patient's records, which he had not signed; for inadequate follow-up with the patient; for not being truthful at his interviews with Medical Board staff; and because he admitted to lying to the city attorney and to the police who were investigating the patient.

On April 22, 2002 Salerno was arrested for being under the influence of cocaine; chasing non-existent people with a loaded weapon and threatening to kill his wife. When arrested, he had a baggie of cocaine in his underwear, and additional cocaine and marijuana were found in other places in his home. He admitted to using the cocaine that day. Police officers also found numerous unregistered weapons and 300 rounds of ammunition in his home.

As a result of the felony charges stemming from Salerno's arrest, on May 22, 2002 he agreed with the Board to accept a full temporary restraining order that prohibited him from any medical practice. The Board filed an Accusation and Petition to Revoke his probation on June 13, 2002. His surrender of his medical license constitutes the conclusion of this case.

A man currently serving a 12?-year sentence for impersonating a physician was sentenced this morning to an additional 120 months in federal prison for posing as a doctor after escaping from prison in 2000.

Gerald Barnes, 70, was sentenced on his fifth conviction of impersonating a doctor. The 10-year sentence imposed by United States District Judge J. Spencer Letts in Los Angeles will run consecutive to both the 12?-year sentence and a separate, previously imposed 2?-year sentence for the escape. The prior sentences are not due to expire until June 2009.

Barnes, who was born Gerald Barnbaum, claims to have legally changed his name in the 1970s to Gerald Barnes, the name of a licensed physician who was practicing in Stockton, California. After obtaining copies of Dr. Barnes' school records and medical credentials, the fake Dr. Barnes used the documents to obtain employment at numerous medical clinics and offices in Southern California.

As part of today's sentencing, Judge Letts ordered the defendant to stop using the name of Gerald Barnes, finding no evidence that the defendant had ever legally adopted that name.

Barnes pleaded guilty in 1981 to involuntary manslaughter in connection with the death of a 29-year-old patient who died of complications from diabetes after being misdiagnosed by Barnes. He was convicted again in 1984 and 1989 on state charges of grand theft and writing fraudulent prescriptions. Upon each release from prison, Barnes resumed his impersonation of Dr. Barnes.

PHYSICIAN IN VIOLATION OF FEDERAL LAW MAY BE SENTENCED TO 598 YEARS IN PRISON 2/10/05

The federal jury convicted Dr. Rafil Dhafir of conspiring to violate the embargo, money laundering, tax evasion and Medicare fraud after a trial that lasted more than three months. Dhafir, an oncologist, was acquitted on one of the 11 counts of money laundering.

Defense attorney Deveraux Cannick said Dhafir was the victim of post-Sept. 11 anti-Muslim sentiment. "If he were not a Muslim, he never would have been charged or brought to trial," the attorney said.

Dhafir founded Help The Needy in 1995 and solicited donations to help starving and oppressed Iraqis. The charity was never properly licensed, and the government says only about $160,000 made it to Iraq (news - web sites).

The government says the charity transferred nearly $4 million from its U.S. bank accounts to a bank in Jordan under the name of Maher Zagha, one of the Help the Needy members charged with Dhafir. Zagha remains a fugitive.

The government said Dhafir defrauded donors by using $544,000 for his own purposes, including buying two coin-operated laundries, and he evaded taxes by writing off the charity's donations.

His defense attorneys argued that Dhafir believed humanitarian aid to Iraq was legal, and that while he mixed charity money with his own, he never used donations for personal expenses.

The attorneys also said Dhafir got caught up in difficult rules governing Medicare and his mistakes were not crimes.

Dhafir was arrested in February 2003 in a high-profile raid at his home and labeled a suspected terrorist by U.S. Attorney General John Ashcroft (news - web sites). The government later backed away from that claim but kept Dhafir imprisoned for more than 20 months while awaiting trial.

Five people, including Dhafir's wife, have pleaded guilty to charges related to the case.

Dhafir, 57, will be sentenced June 20. If given the maximum penalty on each count, Dhafir would face up to 598 years in prison and fines totaling $23.5 million.