Fraud charges dropped, but doctor can't recoup costs

Published: 2010-01-31 22:06:34
Author: Amy Lynn Sorrel | American Medical News | February 1, 2010

They say you can't fight city hall. A recent federal appeals court ruling shows just how difficult it is for physicians to take the government to task.

In a Jan. 8 decision, the 9th U.S. Circuit Court of Appeals overturned a rare award to a physician for legal fees he spent defending himself in what turned out to be a failed health care fraud prosecution. Nevada otorhinolaryngologist Mark Capener, MD, denied any wrongdoing, and a jury in 2006 acquitted him of criminal fraud charges after a trial judge dismissed most of the claims.

Although appellate judges agreed that Nevada prosecutors committed several mistakes throughout their investigation, the court said the errors did not rise to the level of misconduct that warranted any recompense.

Dr. Capener's attorney and the U.S. Attorney's Office for the District of Nevada declined to comment.

The investigation into Dr. Capener's billing practices began when a health insurance company reported to the state what it believed were patterns of excessive sinus surgeries, according to court records. During the probe, the government consulted with a physician expert who reviewed Dr. Capener's patient files, pathology reports and computed tomography scans, and concluded that many of the procedures were either unnecessary or never performed.

A grand jury indicted Dr. Capener in 2005. At trial, the government's main argument centered on testimony from its expert that the surgeries in question would require breaking bones, yet no bone fragments appeared in the pathology reports. The expert concluded, therefore, that Dr. Capener did not perform the surgeries. Nor could he have completed them in the short time frames reported in his claims, the government argued in legal documents.

Fighting back

But Dr. Capener fired back with evidence contradicting the government's claims.

His expert witnesses -- including the pathologist who processed the patient samples -- revealed that bone fragments were clearly visible in most, if not all, of the slides, according to court records.

Although the presence of bone fragments may not have been documented separately in each pathology report, it was often accounted for in other references to sinonasal mucosa, which was not atypical, the experts testified.

Dr. Capener also produced videos showing him quickly performing the surgeries that the government claimed were unlikely, as well as other documentation disputing charges of upcoding claims.

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