According to a False Claims Act lawsuit filed by whistleblower Janet Burke,
California dermatologist Dr. Norman Brooks was falsely diagnosing patients
with skin cancer, just so he could perform a specialized (and expensive)
type of surgery on them – Mohs surgery. Mohs surgery is expensive,
and Medicare and Medicaid were picking up the tab for surgery that patients
did not need, said Ms. Burke.
The Government announced on April 20, 2017, that Dr. Brooks would be paying
the Government $2.68 million to resolve the allegations that he performed
cancer surgery on patients who did not have cancer. Burke will pocket
$482,652 for helping the Government get its money back.
It’s hard to imagine that a doctor could look a patient straight
in the eyes and tell him that he has cancer if the doctor knows the patient
in fact does not have cancer. Unfortunately, Dr. Brooks is not the first
doctor accused of doing just that. I am a lawyer who represents whistleblowers
and I have been writing this legal whistleblower blog for several years.
Back in 2013 I posted a story about a Michigan doctor who was falsely
diagnosing patients with cancer because he could make money by
giving them chemotherapy.
What is Mohs Surgery?
During a Mohs surgery, the physician removes cancerous skin tissue layer
by layer. After each successive layer, the physician examines the tissue
to see whether it contains any cancerous cells. If the tissue contains
cancer, the physician excises another layer. The doctor only ends the
procedure after he sees a “clear margin,” which means that
he does not see malignant tissue.
Mohs can take a significant amount of time, and it requires a doctor who
can act as both surgeon (removing the tissue) and pathologist (examining
the slides for cancer). But by removing the tissue in layers, the doctor
can be sure that he removes all of the cancerous tissue without removing
any more tissue than he absolutely needs to remove, which is particularly
important for skin cancer on the face or other noticeable areas.
The Same Doctor Has to Perform the Surgery and the Pathology Interpretation
Medicare pays handsomely for Mohs surgery, and for that reason it is particular
about what qualifies. First, the same doctor has to perform the surgery
and the pathology. According to the AMA CPT book: “if either of
these responsibilities is delegated to another physician or qualified
health care professional who reports the services separately, the …
[Mohs] codes should not be reported.”
The Patient Has to Need the Surgery
You would think it would go without saying: if a patient does not have
a potentially cancerous lesion, the patient does not have to have Mohs
surgery and Medicare should not be asked to pay for Mohs surgery. According
to whistleblower Burke, however, her Encino, California employer was falsely
diagnosing patients with cancer because he wanted to rake in the reimbursement
for Mohs surgery.
Medicare codes Mohs depending on where the surgery is performed, using
17311 for the head, neck, hands, feet, and genitalia, or any location
with surgery directly involving muscle, cartilage, bone, tendon, major
nerves, or vessels, with add-on code 17312. Surgery performed on the trunk,
arms or legs is coded as 17313 with add-on code 17314. Regardless of the
location, extensive work can be coded as 17315.