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SOME CROOKS ARE DOCTORS; SOME DOCTORS ARE CROOKS
By Michael J. Stahl, D.C. Stephen M. Foreman, D.C.
Real doctors are often asked the question, “Is this plaintiff doctor committing fraud?” While the presence of fraud will vary in each case, the question itself is intriguing. What exactly is provider fraud?
The answer becomes quite obvious when a doctor is treating a patient who was involved in a staged auto accident, was a stuffed passenger or was a participant in a swoop-and-squat accident. It’s also possible that fraud is associated with the unwitnessed workplace slip and fall or the typical Monday morning injury, but are these examples the only areas of fraud which involve a doctor?
Provider fraud falls into two categories, hard fraud and soft fraud. The hard fraud segment of the medical population is represented by a premeditated act: for example, staging an automobile accident that occurs on paper only, then filing medical reports and billings for treatment which was never provided. In other words, some type of design and intent was involved in the plan to defraud.
Soft fraud, on the other hand, occurs when a patient actually does sustain injuries, either at work or by a negligent act, but the treatment and charges are not consistent with the community standards. This is also called medical build-up. A prime example of this type of fraud is when a patient incurs a $350 bill for a post-accident examination, while the same examination for a non-litigation related injury would only be billed at $75.
Because of the extremely large area inherent in the realm of soft fraud, an exact definition of provider fraud is nearly impossible, except by the outlining of each specific situation.
Perhaps then, a fallback to the best three-word definition of fraud we know of is in order — gain through misrepresentation.
Application of this definition, along with a dose of common sense, is the best avenue to take. But we all know that there is nothing common about common sense.
United States Supreme Court Justice Potter Stewart had the same problem in attempting to identify “hard core” pornography (Jacobellis vs. Ohio, 378 US 184, 1964), “…I know it when I see it… “
So do adjusters, defense attorneys, special investigators and all those involved in the day-to-day fight against insurance fraud. No special degree is required, just some good common sense and the ability to apply it to the claim at hand. Much of this involves the recognition of what constitutes reasonable and ethical care by providers who are seeing real patients with real complaints. The following information is provided as a barometer to determine what is real care and what is not.
Let us assume that a patient enters a doctor’s office after being involved in an automobile accident. A reasonable and ethical doctor’s office would have the patient (not someone else) fill out the patient intake form. The provider would be interested in a first-hand description of how the patient feels, not how the interviewer thinks the
Patient feels. Further, the office staff would not have the patient omit portions of the intake information by placing a line though questions such as, “Who referred you to this office?” or “have you had any prior symptoms like these in the past?”
After the patient hands in the completed intake sheets, a reasonable and ethical doctor’s office would not ask for a driver’s license for identification, nor would the patient be required to sign forms like those which are titled, “Declaration Under Penalty of Perjury.” (Such forms have the patient acknowledge that he was, in fact, in the car at the time of the auto accident).
After the paperwork is completed, a member of the staff will usually escort the patient to an exam room — not a treatment room or an x-ray room. This room should have equipment used to examine a patient, as well as gowns, scales, eye charts, blood pressure cuffs, tongue depressors, etc.
Eventually, the doctor will come into the room to record the chief complaints as well as the history of the injury or illness. Reasonable and ethical doctors do not have “historians” with no medical background taking histories.
Ethical and reasonable doctors will indicate a prior auto accident or medically relevant condition in their recods. In the case of a prior auto accident, the history will usually include, “Prior auto accident occurred on 10/1/94. Cervial sprain/strain injuries. Treated with Dr. Jones of Burbank. No disability or residual injuries, ” rather than “The past medical history is insignificant. “
If an examination of the patient’s heart, lungs or abdomen is indicated, the patient will be gowned. A reasonable and ethical doctor would not try to examine a patient who was still wearing a shirt or blouse.
After the examination is concluded, a decision would be made as to the need for diagnostic testing. If, for example, x-rays were determined to be necessary, all metal objects, (eg. earrings, glasses, hair clips, etc.) would be removed, along with all reasonable clothing in the areas of exposure. A reasonable and ethical doctor or radiologist would not perform x-rays through clothing (eg. jeans, bras or coats) nor would he accept poor quality x-rays.
Once the examination and diagnostic testing are completed, the doctor will usually come to some diagnostic conclusion. Reasonable and ethical doctors do not have pre-printed diagnoses listed on exam forms, In fact, most reasonable and ethical doctors do not use such fill-in-the-blank exam sheets.
Once the diagnosis is determined, a treatment plan is initiated. In the case of soft tissue injuries, an orthopedic support might be dispensed along with medication and a prescription for physical therapy. A reasonable and ethical doctor would not outline 30 plus visits and/or three months of care Irons the onset. It is reasonable to outline two to three weeks of care and to re-evaluate Iht, patient after that time. Daily treatment during this time is not part of a reasonable approach to care. Simply put, if the patient sustained injuries which required daily care, the patient would need to be closely monitored, as well as being on medication, using orthopedic supports, etc.
If the treatment is proper, the frequency of the care should taper off after two or three weeks of treatment. The frequency of care should also correlate with the clinical gains being made. A reasonable and ethical doctor would not indicate the patient is “improving slowly” on four reexaminations, only to see the frequency remain the same until the last reexamination, at which time the patient will experience a miracle by having only “slight stiffness in all extremes of motion.” Is it possible for an injured patient to go from “moderate” or “severe” pain on four re exams to “slight stiffness” within the last two dates of service? Not surprisingly, this miracle often correlates with either tort threshold levels or med-pay limits.
What a reasonable and ethical doctor will not do is bill at very high rates for services and diagnostic acumen in order to extract the most out of every service rendered; and/or bill at a higher rate than normal with the intent to negotiate their fees.
If a reasonable and ethical doctor is asked by a colleague or an attorney to render an opinion, the report should address the requesting party. Reports are not addressed “To Whom It May Concern.” If someone asked a reasonable and ethical doctor to address his reports in such a manner to avoid any reference, a reasonable and ethical doctor would not acquiesce.
If asked to give a prognosis, not all patients would be given a clinically “guarded” future. If a patient makes a total recovery, a prognosis of “good” or “excellent” is used. A reasonable and ethical doctor knows that truly “guarded” prognoses are given to those who have some life-threatening condition, and/or some type of significant disability (cg. stroke, cardiomyopathy, paraplegia, etc.). The word guarded implies that some type of ominous clinical future is expected in terms of morbidity or mortality.
Going back to the conclusion that common sense is all that is needed to detect fraudulent provider activities, we would hope that the degree of deviation from the above-described tactics will be the measure taken into consideration before concluding that a doctor may be seeking “gain through misrepresentation.”
When it comes to provider fraud, the well-trained investigator will indeed know it when he sees it.
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Michael J. Stahl and Stephen M. Foreman are both practicing chiropractors in Woodland Hills, California. In addition to their private practice, they are both faculty members for the National Insurance Crime Bureau’s SIU Academy.
© 1995 John Cooke Fraud Report