Do the Right Thing: A Notable Case

STEVEN E. ZIMMET, MD PRESIDENT, AMERICAN BOARD OF VENOUS & LYMPHATIC MEDICINE

In this, my last public commentary about our field, let me tell you about a case, a legal case. Three and a half years ago, I was contacted by the Department of Justice. A physician was performing a large amount of vein ablations on Medicare patients, and they were concerned about Medicare fraud. I agreed to review a few charts. After finding serious cause for concern, I agreed to review 42 patient files with about 8,000 pages of records and images. Sadly, it was obvious to me that these elderly patients, many of whom had significant medical problems and contraindications, didn’t need these ablations. The physician had billed Medicare about 12 million dollars over a 3-year period. One wonders how much he billed patients with other insurance coverage. Not only did he perform unnecessary procedures, but he also up-coded using 37241, often charged for doing two procedures on the same vein (GSV) at the same time, and was storing used endovenous ablation devices for re-use.

After an exhaustive review of the records, it was clear the standard of care was horrendous with examples throughout the records including:

• Completely inadequate venous H&P’s

• Missing duplex ultrasound physician interpretation reports, or reports by the radiologist dictated as long as five months after treatments had been done

• Missing duplex ultrasound images or images that did not show reflux

• Consent forms that were signed after the first treatment and/or were for a procedure different than what was actually done

• Operative notes that did not match what vein was said to be treated

• Treatment done in the face of clear contraindications

The number of ablations was astounding with the physician performing an AVERAGE of more than four ablations per patient and recommending almost six ablations per patient. One 80-year-old patient had 10 veins ablated (with complications), and yet a follow-up ultrasound after all that was said on the technologist’s worksheet to demonstrate reflux in another 7 veins! Review of the actual images revealed otherwise.

It was helpful at trial to be able to point to the recent article in Journal of Vascular Surgery: Venous and Lymphatic Disorders about utilization of venous ablation in the Medicare population, across 10,000 providers and more than 340,000 patients from 2012-2015 revealed the average patient needing ablation required 1.8 ablations 1 , along with registry and other data.

Given all this, one would expect it to be hard for the defense to find an expert to testify on his behalf. For a long time, they did not have an expert. I was shocked and angry that a few months before going to trial a board-certified vascular surgeon agreed to serve as their expert. He said he was also an RVT, but a check of his certification status online and by phone call reveals his certification was revoked in 2014, presumably because he did not meet their MOC requirements. He also advertises as an expert witness with his ad listing saying he has given more than 10 depositions or testimonies over the last 4 years. By the way, I’m pretty sure that none of us know this person. He doesn’t attend any of our meetings (AVLS, AVF), though he was briefly a member of the ACP. His first two-and-a half-page report was so bad, he was not accepted as an expert by the judge. A more extended report followed, which was accepted, and attempted to answer the criticisms I detailed in my report.

My review, report writing, discussions with the DOJ attorneys and FBI, and trial preparation took nearly 300 hours. It was a huge effort. It was a privilege to testify at the trial. I testified for about 10 hours, 4 on direct, 6 on cross. It was meaningful to me that I was able to say I had seen true 37241 for venous malformations performed by Dr. Mel Rosenblatt during my testimony. The defendant was convicted on all counts, has surrendered his license and will be going to jail.

Here’s a link about the casehttps://www.justice.gov/ opa/pr/southern-californiadoctor-found-guilty-12-million-medicare-fraud-and-deviceadulteration

Why am I telling you all this? First, it was a big experience that I found interesting and wanted to share. Secondly, this was an ABVLM diplomate, which is where I have been living. (Of course, his certification has been revoked.) Much more importantly, while we all know that many in our field are dedicated, caring physicians committed to providing the best care we can, we also know there is significant fraud and abuse going on, and I believe it is going on across primary specialty lines, partly based on review of records in other specialties for matters for the Texas Medical board and for the FBI. In my opinion, any honest physician who had reviewed these records would not have agreed to testify as an expert.

A few thoughts in wrapping up. Keep in mind that fraud and abuse exist across specialty lines. Do not serve as an expert unless you believe in the case. As Peter Gloviczki told me, it is always helpful when the facts and truth are on your side. If you see fraud, report it, whether you are a physician, ultrasound technician, nurse, or member of industry. It does not serve us, our field, or society well, and does great harm to patients.

It has been an honor and privilege to be involved in this field we all care so much about. It is incredible how much progress has been made. Now, use these developments and increased interest in venous disease to promote better and standardized training programs for the venous specialist of the future and to provide the best care we can to the patients we serve.

1. A REVIEW OF UNITED STATES ENDOVENOUS ABLATION PRACTICE TRENDS FROM THE MEDICARE DATA UTILIZATION AND PAYMENT DATABASE. CRAWFORD, JM, GASPARIS, A, ET. AL. J VASC SURG VENOUS LYMPHATIC DISORD 2019 JUL;7(4):471-479.