Sunday, December 22, 2013

My Response to the Government's Response to My Motion to Dismiss the Government's Claim

     The government's Response reiterates the points made in its original Claim, namely that it seeks to "recover" millions of dollars that were "falsely submitted" for payment.
     It does not claim that services weren't provided, or that the patients didn't exist, or that they didn't have medical problems for which they requested treatment, or even that the reasons for visits, tests and procedures weren't ascribed, in chart notes, by me--a licensed, Board-certified physician--or by one of my employed providers, to actual patient symptoms.  The government asserts willy-nilly that the services were "unnecessary," "inappropriate," or "non-covered."
     Who is the government, one might ask, to make decisions about whether services are necessary or appropriate?  Has the government been to medical school or residency?  Has the government been treating patients for decades?  Has the government accrued in-the-trenches experience that might inform its claim?  Does the government have a theory about the practice of medicine, especially as applied to people in underserved areas with no public transportation and limited access to specialists?
     We the people have invested the government with power to make medical judgments!  Through the False Claims Act (revised in 1986 to include specific investigative powers against the medical establishment, and ratified by elected legislators) Americans have given the government authority to decide whether doctors are doing a good job or not, and whether the decisions doctors make about patients should be subject to criminal allegations.
     No wonder doctors feel threatened and are afraid to make decisions alone.  No wonder they have banded together in groups.  ("There's safety in numbers," a gastroenterologist advised me last month, when I said I might go back into practice.  Safety from what?)  No wonder doctors turf patients from one specialist to another, and to the ER and back again, wasting time, attenuating risk.  They want to avoid scrutiny;  they don't want to be accused by insurance companies (including Medicare and Medicaid, which are government subsidiaries) of "overbilling."  The government surveys medical professional constantly, via computer programs that mark outliers and through its whistleblower mechanisms.
     There are two ways to look at the government's Response to my Motion to Dismiss.
     First, does the government have a legal basis for defending its claims against me?  The answer is:  Yes.   I can't do anything about that, unless I become a legislator and push back against some of the laws that are turning this country into a totalitarian state.   While we were sleeping our legislators enacted laws that are not in our best interests, laws that allow government agents access to and authority over every aspect of our lives.  Why did our elected officials do this?  Maybe they were sleeping too, or they wanted to hurry up the ratification process and get to lunch, or they didn't think we cared (because hardly anyone writes to legislators any more), or they were manipulated by lobbyists.  They didn't contemplate the downstream effects of passing statutes like amendments to the False Claims Act (or the NSA, as revealed by Snowden), so our constitutional rights get violated at the whim of government officials.
     The legal basis for my prosecutor's raid on my clinic and subsequent terrorizing of my life is located under Fed. R. Civ. P. 12(b)(6) and established in case law under Magluta v. Samples (2004)  and Hawthorne v. Mac Adjustment, Inc. (1998):  "In reviewing a option to dismiss…a district court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff."
     This means that if the federal government alleges wrongdoing against me, the court must accept the allegations.  This is terrible case law.  Why should a district court be required to accept a one-sided complaint as true and decide in favor of the plaintiff?  Since when is the government always right?  We know it's not, by the preponderance of cases it loses when a defendant decides not to settle or is forced to go to trial.
     "The prosecutor loses, and you know what?" my lawyer quipped.  "He gets up and goes to work the next day.  He has nothing to lose."
      No wonder government prosecutors push so hard:  they have statutes under which they can prosecute, and case law to back them up, and nothing to lose if they lose:  no legal fees, no smear on their reputations, no loss of their jobs, no professional opprobrium, no sidelong looks from friends and acquaintances for the rest of their lives.  Is anyone even paying attention to government prosecutors?
     Here's another thing my lawyer said:  "The government's stance is that it knows fraud when it sees it."
     Really?  How?  How does the government know fraud?
     By the numbers.  Any doctor who is a high biller compared to other doctors must be committing fraud.  Wow--that's a real scientific standard!  It allows the government to search and seize records and assets from the top 20% of doctors, if it chooses.  And it does choose, because the government has orders from the Department of Justice and the president himself to take back money for Medicare fraud.
How do they find fraud?  They run the numbers.
     The second way to look at the government's Response to my Motion to Dismiss is to ask, does the government have a medical basis for defending its claims against me, and the answer is:  No.
     I will defend my medical decision-making even though statistics show that I'm in the top percentile of billers.  A percentile ranking is not confirmation of guilt.  I billed more because I did more.  That's not fraud.  I did more for my patients because I was able to do more and because I refused to cow to the prevailing (fear-based) standard of care--the one in which family doctors function as turnstiles for medical care, sending patients "all over creation" (as my mother says), and doing almost nothing in the way of diagnostics or procedures on-site.
     The government is not a medical professional.  The government hasn't run a clinic in a rural area.  The government hasn't tallied up how much money was saved by treating patients early and on-site at my clinics.  The government hasn't calculated how much quality of life was preserved for my patients, who knew where to go to get whatever they needed when they had symptoms, day or night, and whose gratitude for this kind of total care was immense.



  1. There is no pretense on my part that I know the ins and outs of Medicare/Medicaid. My stance is that it is not safe for doctors to continue being a provider for either program. Serving Medicare/Medicaid patients puts not only a doctor in peril it can put the entire family at jeopardy. It is not safe for a doctor to sell his/her practice and leave behind patient charts, that fact is established. We have already agreed to disagree but… shouldn’t doctors who are set on owning a solo practice develop a business model independent of government programs? Think outside the box!

    According to the Government Accounting Office, the Federal prison system grew 27 percent over the past decade. The Department of Justice’s Federal Bureau of Prisons predicts this trend to continue over the next decade. Currently, the Federal prison population stands at 219,000 inmates.

    The following article is about the events leading to the incarceration of Dr. John Natale of Illinois. Dr. Lee Hieb says Medicare mobsters have physicians running scared

    A Must Read: July 15, 2013

    At 60, this year is the first that I can say I’ve lived a majority of my life in the United States. I lived 22 years in Germany and admit that I am more familiar with German health care. German doctors treat the whole person. They are routinely inquisitive about lifestyle, sex life, and habits. They run the gamut of tests on new patients to establish a base point health record. They routinely run tests most Americans are never given. My wife reminds me often that should she become sick she wants to visit a doctor in Germany. She is not happy with the care she has gotten in America. I think this is her experience and she’s entitled to her opinion.

    Germans have a vote. Germans vote with their coupons and gossip. Germany is a small country where doctor gossip is very popular. That gossip can be especially damning since Germans rarely move far from their city of birth. The German doctor receives a coupon from the patient. It is not good for a doctor to have but a few coupons to turn in. The Germans in a passive aggressive manner determine how ‘good bedside manner’ is defined and establishes what ‘comprehensive health care’ means. Yikes!

    Germany has many social programs for its citizens that enter into the equation. But, after the Berlin Wall came down Germans suffered sticker shock at their contribution to pay for it all. The middle class paid at that time as much as 57 percent of individual income towards their benefits.

    When I read the complaints against you I found them to be highly subjective also. I will say that I am totally against government pushing its way in-between the patient/doctor relationship. I’m against government bureaucrats or insurance executives dictating their biased views about what comprehensive health care should be.

  2. The government speaks out of two sides of its mouth. It says it supports comprehensive healthcare for all citizens, and it endorses preventive medicine. The Affordable Care Act requires many more family physicians to deliver this comprehensive care. But when a doctor like me gives comprehensive care--of the sort you describe in Germany--WHAM! Fraud! Abuse! Pay your lawyers or go to jail! No wonder doctors are all running scared.

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