Wednesday, June 4, 2014

Had I known the "Paul Harvey"

In March, I posted here about the ongoing scandal in California over the way a hospital owned by Mr. Drobot incentivized doctors to make referrals. That blog also included details about a Florida hospital settling a whistleblower complaint that alleged bonus and other payments to doctors who performed large volumes of surgery at that hospital.

I have written about a variety of fraud situations recently in
"Criminal Coffee." The title situation, and others mentioned in that post support that there are government agencies, including state and district attorneys that are making progress in finding and prosecuting workers' compensation fraud. Some claim that through fraud "tens of billions of dollars in false claims and unpaid premiums are stolen every year."

With a large and incredibly funded federal government, it is astounding when schemes such as these come to light in the news. I hear people ask how such schemes can go on as long as they do, and reach the volume of money that they do. 

Certainly there is a downside to committing fraud. The news is full of stories where people are ordered to pay the money back in restitution and others in which people are put in jail. Is the deterrent enough? We see some emergence of the civil lawsuit as another deterrent. Qui Tam, or "False Claims Act" cases are seen in the Medicare reimbursement setting. We are also beginning to see civil lawsuits on a state level. Are these enforcement tools increasing in frequency, or is the news doing a better job of letting us know?

Recently a lawsuit filed by State Compensation Insurance Fund. It was this civil suit that began to unravel the situation in California with Mr. Drobot. The repercussions have been significant. He is no longer the owner of the hospital, has admitted bribing a California official, and his son stands accused of a variety of wrongdoing. 

Now the other shoe may be about to drop, and it may be a bigger shoe (like size 16) than the first. In May, Candice Smith filed a complaint in California against her physician, Pacific Hospital of Long Beach and Michael Drobot. She alleges that she underwent a fusion surgery at the hospital Drobot owned. It is worth noting that aside from her allegations and this specific case, there has been significant criticism of spinal fusion and other surgeries in the news this year.

Ms. Smith had a work-related back injury according to the complaint, and therefore underwent a back fusion; upon complaints of continuing symptoms, she then had a second surgery, a discectomy. Her physician then recommended a third surgery, a second fusion/revision. 

Ms. Smith then sought a second opinion, underwent surgery performed by this new second opinion physician, and had the fusion hardware from the original surgery removed. Anyone familiar with back claims will not find anything exceptional in this story so far, as most have experience with at least one fusion attempt that has required multiple surgeries and the removal of some hardware. 

Ms. Smith now sues for medical malpractice, alleging that the original implantation of hardware (fusion one) was negligent. Newsworthy, however is the second count of the complaint, which alleges the defendant doctor, hospital and Mr. Drobot "owed a duty to disclose all material facts, risks, instructions and information pertaining to Ms. Smith's surgery, including any information that would be relevant to Ms. Smith's decision to submit to surgery." Essentially, she she alleges that she should have known the "rest of the story" when making her decision about having her body opened and altered and supplemented with this hardware.

The Complaint alleges further that this "informed consent" disclosure of information requires "the disclosure of personal and financial interests of the physician and/or surgeon if those personal and financial interests may affect their personal judgement." This is well beyond a duty to warn of the medical risks that may from surgery, such as infection, further injury, death, etc. 

The complaint continues, noting that Mr. Drobot plead guilty to violating federal law in paying "kickbacks." Ms. Smith says that Mr. Drobot paid kickbacks to "doctors, chiropractors, surgeons and other medical practitioners," including the physician that performed her initial fusion and discectomy. She alleges that it was these payments and kickbacks that led her surgeon to recommend her surgery generally, and to recommend that she travel to the specific facility (which Drobot owned) where it was performed. She notes that according to Drobot's plea agreement in the criminal case "Drobot offered to pay kickbacks up to $15,000 per lumber fusion surgery performed" at his hospital. 

Sounds pretty unsavory so far. But if a procedure is objectively needed, and the physician can ethically and professionally do the procedure at hospital A or B, and the payment is better at hospital A, is there anything inherently wrong with picking or recommending that facility? Is that the issue, or is it merely a matter of a patient's right to know what may be leading to the facility selection/recommendation. Hold on though, the allegations are not finished. 

Ms. Smith also alleges that the hardware that was implanted in her body in that first fusion was inappropriate or even defective. She says that as part of the kickback scheme doctors used fusion hardware "that came exclusively from a third party medical hardware company also owned by Drobot." Ms. Smith alleges that Drobot artificially and "fraudulently inflated the price of the medical hardware" through this third party. Again, if the hardware is "all the right stuff" and would be what the ethical and professional doctor would chose regardless of the selected facility and regardless of the hardware supplier, is the hardware selection really an issue? Or, is the issue really just whether the patient has a right to know that there could be some influence that potentially or actually guided the hardware selection/recommendation?

In short, Ms. Smith alleges that she went to Pacific hospital and underwent the fusion and implantation of particular hardware because her doctor recommended it. She now says that she did not get the Paul Harvey ("the rest of the story") and now believes that the recommendation for the procedure, the particular hospital, and the hardware used were all influenced or possibly influenced by fraud, kickbacks and money paid by Drobot or his agents to physicians or other providers. She is saying that if there was a potential for someone to perceive a financial gain from the "how," "where" and "with what" her fusion was performed, then the "informed consent" disclosure should have included telling her about the financial relationships so that she could make her own decision. 

She asserts that the failure to provide her with the "Paul Harvey" is a breach of the concept of informed consent. That is that this information should have been provided to her in making her decision. Most would agree it is important that a doctor tell you the potential downside to a surgery, such as "there is a risk of death?" Will a jury agree that it is as important to know that the recommendations your doctor is making may be or could be perceived as influenced by a $15,000 "bonus," "rebate," or kickback? If the financial situation played no role in the doctor's decisions, should the financial situation nonetheless be disclosed to the patient?

If a doctor is taken on a fishing trip to the Bahamas by a pharmaceutical representative or paid to give a lecture on the benefits of a new treatment or test, should these financial relationships be disclosed to that physician's patients for whom she or he prescribes that medication or procedure or test?

There are those in the workers' compensation blogging world who believe the Ms. Smith's lawsuit is just the first that Mr. Drobot will defend. One is left to wonder whether similar allegations will be made in other situations regarding physician reimbursement issues, prescription habits, or otherwise. Will her definition of "informed" consent spread and lead to more sunshine in the world of medical care?

Will the specter of lawsuits and financial loss affect the volume of surgeries performed in the United States and the delivery of other medical care in years to come?

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