Trick Pony – or Medical Services? FCA Defendant Trots Out Bizarre Argument

Now THIS argument took some gall. Kirtish and Nita Patel ran a mobile diagnostic
testing service in Rockaway, New Jersey. After an anonymous whistleblower
filed suit under the False Claims Act, they had to admit that they had
used non-doctors to “read” the test results and then they
forged doctors’ signatures at the bottom of the test “reports”.
Apparently Kirtish Patel, who is not a physician, wrote many of the reports
himself. Medicare and private insurance companies paid $4.3 million for
these phony test results. When it came time for determining how much the
damages were, though, the Patels argued that they should not have to pay
all of that money back because, hey, they actually did conduct a test;
the “only” thing that Medicare did not get was a doctor to
read the results.

Seriously? So if a trick pony is trained to step on a foot pedal to operate
an x-ray machine and generate a randomized report, does Medicare now have
to pony up?

The Patels Claimed the Tests Had Value Even Though No Doctor Ever Read Them

When the U.S. moved for summary judgment on damages, Kirtish Patel submitted
an affidavit arguing that “60 percent of the value of a claim [for
a payment from Medicare] came from the performance [of the] test itself
(the ‘technical component’ of the test), and 40 percent of
the value of a claim arose from the specialist physician interpretation
of the claim (the ‘professional component’ of the test).”

In other words, Patel maintained that the Government mostly just pays to
have the test done; a mere 40% of what the Government pays for is having
a doctor read the results and write a report.

A Story About Why You Should Not Hire Me to Be Your Veterinarian –
And Yes, This is Going to Connect Up

When I was in law school, a friend of the family told her young daughter
that I was at Harvard Law School. Hoping to inspire the little girl to
work harder on her schoolwork, our friend apparently waxed eloquent about
how it was the best school in the nation and how much work it took to get in.

She may have oversold it a bit, though. A week or so later, their family
dog got very sick and the veterinarian recommended that the dog be put
to sleep. The mom broke the news to her little girl. The girl teared up
and asked a lot of questions. Her mom explained that she had taken the
dog to the vet, and the vet believed that this was the best course of action.

But the little girl wasn’t convinced. She sat for a minute thinking
about it, and then she said, “I think we ought to take him to see
Lee before we put him down. After all, she goes to Harvard Law School.”

I treasure this story, because it is funny and also because I was so deeply
moved by her (misplaced) faith in me. But I will tell you what —
I don’t care what school I went to, that little girl was much better
off having a vet look at her dog than having me do it!

Why the Patels’ Argument Makes No Sense

My opinion about your dog’s condition is worthless because I don’t
know a thing about caring for dogs. When you have an important decision
to make, whether about your pet’s health, your health, or anything
else that really matters to you, it’s not enough to ask someone
who is well-trained in a field; you need someone who is trained in that field.

The Patels argued that even though they sent out phony, doctored-up (if
you will) reports, the tests themselves still had value because theoretically
it was possible that the patient’s direct care physician could have
looked at the underlying data and drawn his own conclusion.

That argument has so many problems. First, the patient’s doctor ordered
the test so that he could get a review from a specialist who understood
more than he did about how to read that particular test. He did not need
to look at the underlying data because he had asked someone even more
qualified to read the result and write the report. Second, doctors cannot
be expected to understand how to read each and every test – that
is not their specialty. Third, even if the patient’s treating physician
did happen to review the original data, he probably would second-guess
his own opinion when he saw that another physician, who spends all day
interpreting tests just like that one, disagreed.

The defendants’ argument was ridiculous. Fortunately, the court did
not buy it.

The case is still pending, but the Court’s order granting summary
judgment to the U.S. and the relator is an important step in resolving
the case. Kudos to my friend and fellow whistleblower lawyer Tim McInnis,
who represents the whistleblower. In my next post, I’ll talk more
about what the Court ruled.