Monday Morning Quarterbacking Healthcare Style

Monday Morning Quarterbacking Healthcare Style

Nurses and medical doctors are the two most trusted and respected professions in America according to a Gallup poll released in December 2018.  Those polled were asked to rate the honesty and ethical standards of people in various professional fields.  Eighty-four percent of respondents rated nurses as very high or highly honest and ethical, the top rating in the survey.  Coming in second at sixty-seven percent were medical doctors.  Lawyers came in near the bottom of the pack at nineteen percent and on the bottom rung of the honest and trustworthy ladder were Members of Congress at eight percent.  Ouch!

It makes sense that we should see our medical providers as among the most honest and trustworthy people in our society.  We trust them to make the proper diagnoses and we put our lives, and the lives of our loved ones, in their hands in very precarious times.  A nurse or a doctor that does not have the trust of their patients is going to have a short career in medicine.

While we as patients believe that our doctors and nurses are highly ethical and trustworthy, there is a very powerful organization in our country that seems suspicious of our doctors and nurse practitioners – the United States Department of Justice (“DOJ”).  The DOJ is the primary law enforcement agency in the U.S. with responsibility to enforce the Federal False Claims Act (“FCA”).  Under the FCA, it is a crime to submit or cause to be submitted a false claim for payment to the federal government.  The FCA also allows whistleblowers to bring civil law suits in the name of the government.  Importantly for doctors and nurses, the FCA applies to claims for payment by Medicare and Medicaid submitted by physicians and other health care providers.

In a case decided in July 2018 by the United States Court of Appeals for the Tenth Circuit, the DOJ sided with a whistleblower (who was a physician) who claimed that a cardiologist, Dr. Sherman Sorensen, was performing heart procedures that were not medically necessary.  According to the appellate court’s written opinion, Dr. Sorensen performed a significantly high number of a particular surgical procedure that closes small holes in the heart that are the result of a genetic defect.  These small holes can lead to strokes or heart problems in some people.  The court’s opinion further stated that Dr. Sorensen performed so many of these procedures because he believed, in his medical opinion, that it was unethical to wait for a patient to have a stroke or a heart attack before performing the medical procedure.  Dr. Sorensen’s opinion, according to the court, was not in line with the American Heart and American Stroke Association’s guidelines.  Many of the heart procedures performed by Dr. Sorensen were billed to Medicare.

The whistleblower eventually brought a civil lawsuit against Dr. Sorensen based upon his submission of claims to Medicare for the heart procedures.  When a claim is submitted to Medicare, the health care provider submitting the claim makes the following certification to Medicare: “I certify that the services shown on this form were medically indicated and necessary for the health of the patient…”  The trial court ruled that Dr. Sorensen did not file false claims with Medicare and stated, “medical judgments and conclusions about which reasonable minds may differ cannot be false for the purposes of an FCA claim.”  

The appeals court reversed the decision of the trial court and ruled that, “a doctor’s certification to the government that a procedure is ‘reasonable and necessary’ is ‘false’ under the FCA if the procedure was not reasonable and necessary under the government’s definition of the phrase.”  The Medicare Program Integrity Manual states that a medical procedure is “reasonable and necessary” if the procedure is:

  • Safe and effective;
  • Not experimental or investigational . . .; and
  • Appropriate, including the duration and frequency that is considered appropriate for the item or service, in terms of whether it is:
    • Furnished in accordance with accepted standards of medical practice for the diagnosis or treatment of the patient’s condition or to improve the function of a malformed body member;
    • Furnished in a setting appropriate to the patient’s medical needs and condition;
    • Ordered and furnished by qualified personnel;
    • One that meets, but does not exceed, the patient’s medical need; and
    • At least as beneficial as an existing and available medically appropriate alternative.

The appellate court effectively “Monday morning quarterbacked” the medical decisions of Dr. Sorensen on how to treat his patients.  The subjective medical opinions of Dr. Sorensen were trumped by the opinions of other physicians and the Medicare Program Integrity Manual.  

The lesson provided for physicians and other medical provider by this case is that your medical opinion is no longer sacrosanct and can be successfully second guessed by the government.  This court decision is a warning to all medical providers that they must take their compliance obligations seriously.  Providers must make sure they are performing medical procedures that are truly necessary.  To make this determination, an assessment of whether they are performing a particular procedure in a way that is on par with their peers may be necessary.  This may require monitoring data on procedures performed and measuring that data against what other similar providers are doing.  Also, make certain that medical necessity determinations are thoroughly documented in the patients’ medical records.

Providers should work toward a a culture in their practice where providers instinctively think about documenting medical necessity as well as other service prerequisites for each and every patient.  Such a culture will cause providers to focus on medical necessity and will create a record that will be invaluable in the event of an audit or litigation.