A federal judge in Kentucky recently took the unusual step of vacating a criminal conviction based on the court’s belief that the evidence was insufficient to prove guilt. The primary evidence in the case consisted of expert testimony. The court held that mere disagreement among experts cannot support a criminal conviction for health care fraud.
Facts of the Case
Dr. Richard Paulus was charged in federal court with submitting fraudulent billings to Medicare. Federal prosecutors alleged that, while Dr. Paulus was working at a medical center in Ashland, Kentucky, he performed unnecessary cardiac surgery so that he could collect fees from government benefit programs.
Dr. Paulus treated patients for coronary artery disease (CAD), a condition that occurs when plaque builds up along an artery wall, restricting blood flow to the heart. The condition can be diagnosed in a variety of ways. One diagnostic procedure is to insert a catheter into the patient’s blood vessel in order to inject material into the artery that will allow an angiogram to be performed.
The government contended that Dr. Paulus performed unnecessary catheterizations and stent placements. The defense argued that, at worst, Dr. Paulus was guilty of being more aggressive than other cardiologists.
The government’s proof relied largely on expert testimony. At the conclusion of the trial, the jury found Dr. Paulus guilty of heath care fraud and of several counts of making false statements to the government. He was acquitted of other false statement charges.
Dr. Paulus asked the trial judge to overturn the jury verdict and to dismiss the case. He based that request on his contention that the government’s case was based solely on the fact that medical experts disagreed with each other.
The charge of health care fraud required the government to prove that Dr. Paulus intended to defraud a health care benefit program with regard to the payment of benefits. The benefits in this case were Dr. Paulus’ fees.
In some health care fraud schemes, a doctor bills for services that were never performed. In this case, there was no dispute that Dr. Paulus performed the procedures for which he billed. The government, however, contended that the procedures were unnecessary because Dr. Paulus inserted cardiac stents in blood vessels that did not have at least 70% blockage.
The government’s primary proof of fraud came from four expert witnesses who reviewed the medical records of Dr. Paulus’ patients. The medical experts testified that Dr. Paulus’ “angiogram assessments were incorrect and that the stent procedures were unnecessary.”
The government also relied on six cardiologists and one neurologist who agreed that Dr. Paulus performed unnecessary procedures. The experts generally relied on the American College of Cardiology standard for stenting coronary blockages. In addition, the government presented evidence that Dr. Paulus performed significantly more procedures than is common.
To convict Dr. Paulus of making false statements, the government was required to prove that he made statements of fact to the government that he knew to be false. The government argued that he did so by submitting medical records to benefits programs that misrepresented angiogram results.
The government argued that the degree of blockage shown by an angiogram is a fact and that its medical experts established that Dr. Paulus misrepresented the facts by claiming that patients experienced greater blockage than the angiograms revealed. The court disagreed.
For the purpose of proving health care fraud, a false statement must be an assertion of fact that is capable of being proved or disproved. The trial judge noted that the government’s experts testified that cardiologists commonly disagree with each other. It is not unusual for one doctor’s interpretation of an angiogram to differ from another doctor’s interpretation. Noting that “the statutes targeting health care fraud do not criminalize subjective medical opinions where there is room for disagreement between doctors,” the court concluded that Dr. Paulus’ interpretation of the degree of blockage shown in the angiograms was a subjective opinion, not a statement of objective fact.
It did not help the government’s case that its leading expert has written textbooks that discussed the difficulty of interpreting angiograms. The textbooks explained that the wide degree of diagnostic disagreement among doctors view the same angiogram is “well known.” That writing undercut the government’s argument that expert disagreement about angiograms is so minimal that the interpretation of an angiogram can be regarded as factual, rather than the statement of an opinion.
Health Care Fraud
The health care fraud charge depending on proof that Dr. Paulus made false statements. Since the government’s expert testimony established only that doctors disagree with each other, the government pointed to circumstantial evidence of fraudulent billings. However, that evidence — primarily statements that Dr. Paulus made to his patients — was too ambiguous to support a criminal conviction.
Nor was evidence that Dr. Paulus performed a larger-than-average number of procedures convincing proof of fraud. Dr. Paulus’ salary had little relationship to the number of procedures he performed, so he had little financial incentive to defraud the government.
Judges rarely second guess juries that convict defendants based on expert evidence. When proof comes down to expert witnesses disagreeing with medical judgments made a doctor who is being prosecuted for fraud, however, expert evidence alone may not be sufficient to support a conviction, no matter how convincing the jury finds it to be.