The DOJ and Assistant U.S. Attorneys often attempt to lower the standard of proof so as to convince a jury that conduct more akin to malpractice is sufficient for a conviction. White-collar criminal attorneys who represent the healthcare sector must be weary of such efforts, and they must ensure that any effort to lower the hefty burden of a federal prosecution is met with resistance.
Not long ago, a prosecutor approached one of our attorneys with a plea deal for a physician accused of healthcare fraud and prescribing controlled substances. He informed our lawyer that he had a great case against the physician and that our client should plead guilty to drug trafficking and healthcare fraud.
The prosecutor’s theory: the physician failed to check a box on DEA paperwork and was therefore not actually authorized to prescribe Schedule II controlled substances.
According to his argument, each subsequent prescription was unlawful.
But even the most liberal interpretation of federal law does not support the prosecutor’s case. It was evident to me that this prosecutor did not appreciate — or flatly ignored — the applicable legal standard to prove unlawful prescribing.
In order to be convicted of unlawful prescribing, the government must prove that the physician prescribed for other than “a legitimate medical purpose and in the usual course of his professional practice.”
Likewise, in order to be convicted of healthcare fraud, the government must prove that a physician devised and executed a scheme or artifice to defraud a federal healthcare program and that the physician knowingly billed a federal healthcare program in a fraudulent manner (i.e. upcoding, unbundling, billing for services not rendered). These standards essentially require that the physician knowingly engaged in criminal conduct.
Violation of a regulation is not sufficient, nor is carelessness, recklessness, or malpractice. If juries truly understand and apply the standard, it is much more difficult to convict a defendant. The majority of the trial must be spent on indoctrinating the jury to understand the applicable legal standard. It must be mentioned often, in opening statement, during the expert’s testimony and during closing argument.