Medicine is a profession with high ethical standards. At the same time, there is much money to be made. Bad players find ways to siphon some of the nearly $600 billion we spend on Medicare each year. So, both the health care industry and its regulators constantly struggle with how to cope with the kickbacks, conflicts of interest and billing for unnecessary care.

Illustration by Nora Valdez

Last year, $2.5 billion of the $2.8 billion in Department of Justice False Claim Act recoveries involved the health care industry. In 2019, whistleblowers working with the DOJ included hospital administrators, sales representatives, home health care workers, physicians and patients.

Now, they may have more muscle. Maria Durant, a partner with the firm Hogan and Lovells, told a group of lawyers gathered in Boston last week there has been a a major shift in the way courts interpret the validity of medical opinion. She spoke at a conference on health care law held Thursday by the Boston Bar Association. 

In the past, as long as a claim was a doctor’s opinion, it could not be considered false under the False Claim Act, she said. Many believed that professional judgments could not be deemed false under the law because they are inherently subjective, she said.  As long as a professional holds a good faith belief in his or her opinions, that can’t give rise to a falsity of fraudulent conduct.

Durant said two cases have “really upset that concept.” Both involved cardiac care.

The 6th Circuit Court ruled last summer in United States v. Paulus that a cardiologist committed health care fraud by exaggerating the severity of patient illness. His medical opinion led to unneeded cardiac stent procedures which were billed to the Medicare program.

“A doctor who deliberately inflates the amount of blockage he sees is telling a lie. If he does so to bill a more expensive procedure, he has committed fraud,” according to the ruling.

Cases like this often produce a battle or experts over medical judgements. In this case, the prosecutors also offered evidence of his high rate of billing for the procedure and his $2.5 million salary to support the case.

In a separate 2018 case, a court ruled that a Salt Lake City cardiologist fraudulently billed for unneeded heart surgery. The 10th Circuit Court ruled medical judgment can be false under the False Claims Act United States ex rel. Polukoff v. St. Mark’s Hospital. Both decisions reversed district court rulings.

“Both of these cases turned the notion on its head that doctor’s opinion could be false,” Durant said.