In a recent trial, Howard Bailey represented a client/Doctor who had committed more than 40 ‘miss-billings’ caused by the use of a computerized billing program added-on to an existing electronic patient record keeping system. Without realizing that the closing of the patient notes would cause an automatic bill for any CPT codes left checked in a template he was using, the Doctor miss-billed for approximately $80,000 from the patients’ insurance carriers. While represented by his former lawyer during a preliminary hearing before the NJ Board of Medical Examiners, the Doctor gave a statement that was at best ‘confusing’ and which could be (and was) interpreted by the NJ Office of the Insurance Fraud Prosecutor as indicating that the Doctor has knowingly committed fraud. At trial, during which Howard Bailey provided defense counsel to his client/doctor, the jury heard the statement, and for the first time the Doctor had the opportunity to testify as to what he had actually meant when he gave the statement before the Board. The jury agreed that the conduct was not knowingly or recklessly done, and returned a verdict of NOT GUILTY as to all charges.
Criminal convictions for medical claims fraud carry stiff penalties including prison, and administrative sanctions for virtue ethics violations can result in a lengthy suspension of your medical license. The prosecution of even mistaken miss-billing has become much more common, and can include the prosecution of these charges for the ethical failure to maintain meticulous medical records as a reckless act when a miss-billing results.
While cooperation with the New Jersey Board of Medical Examiners is critical to the protection of your medical license, before any statement is made to the Board, an assessment has to be made as whether there was in fact any criminal intent to the miss-billing. Both you and your lawyer need to be in agreement as to what the theory of your defense is, with a plan developed to emphasize that the miss-billing was in fact an inadvertent mistake, and at worst negligent rather that reckless or knowing conduct. Before any statement is given to the Board or the prosecution, the medical professional needs to understand how to testify, as it is different from any other type of public speaking. It is critical to understand that a statement that is subject to interpretation as admitting criminal culpability can be used by the State to prosecute you for medical claims fraud, even when that ‘interpretation’ is not the context you intended to convey by what you said.
If you are the subject of a medical claims fraud investigation due to a procedural or software error or otherwise, do the prudent thing and hire legal representation before “cooperating” in front of any “impartial” Board. Not only can we thwart a disruption to your practice at best, but stave off fines, or worse, the prospect of loss of license or even prison time if you go at it alone and open further inquiry. Please contact my office ASAP to discuss the investigation you may be facing. The consult is free: 973-982-1200. My experience and philosphical approach can be the difference between freedom and an unfortunate outcome.