Sometimes doing the right thing could cost you a job, and it seems — on the surface — that keeping quiet is the best option. Keeping quiet, however, poses a distinct dilemma when you are aware that your employer is doing something illegal — and especially when your employer is also endangering the lives of patients entrusted to him.
Ms. V, a veteran nurse practitioner working in private practice, encountered something she never expected to see after more than 20 years of working. She had recently begun working in Dr. D’s busy hematology/oncology practice. Ms. V was one of three nurses working for Dr. D. If a patient were coming in for something routine, such as an injection, the patient would see Ms. V or one of the other nurses rather than the physician.
Ms. V had a good working relationship with the other nurses, all of whom were relatively new to the practice. Ms. V didn’t have as much interaction with Dr. D as she’d had with previous employers, but this did not bother her; she was confident in what she was doing.
The first months on the job were uneventful, aside from one oddity: Ms. V was told that the practice in the office was to bill visits at level 3 (a price structure reserved for physician-based contact), even if the patient had only been seen by the nursing staff. While that seemed strange to Ms. V, she shrugged it off.
A few weeks later, however, Ms. V was sure that she had recorded the specific medication dosage that she administered in the patient’s file, but when she went back to review the file later, the dosage was different than what she’d originally written. Chalking it up to bad memory, she ignored it — until it happened again. At this point, she asked one of the other nurses if this had happened to her, and the nurse replied in the affirmative.
“I think Dr. D is changing the chart notes,” said the other nurse. “I’ve noticed the same thing.”
Ms. V was perplexed but didn’t want to confront Dr. D or ask the office manager, who happened to be the physician’s wife. She was concerned about losing her job, as the market was tough right now and finding another position might prove difficult in the short term. So she and the other nurses said nothing about the obvious chart changes, and went about their business.
Then, Dr. D called an office meeting and announced a change in policy.
“From now on,” the physician told his staff, “you are to split the 40,000-unit vials of epoetin alfa [Epogen, Procrit] between two patients — giving them each a 20,000-unit dose.”
The nurses snuck dubious looks at each other but said nothing.
“Just chart it as a single vial in each patient’s record,” Dr. D instructed.
The nurses quietly went back to caring for their patients. But Ms. V was torn. This wasn’t right, yet she wasn’t sure what to do about it. Her coworkers felt the same way — each had the feeling that this split in dosing was not appropriate, yet each needed to keep her job.
Ms. V considered going to an attorney for advice, but decided against it. She didn’t know how she would treat her next anemia patient, and the thought of dividing the epoetin alfa vial in half did not sit right with her. Internally, she was weighing whether to not to follow the physician’s instructions.
Before she had to make that decision, however, the situation came to a head. One morning, federal subpoenas were delivered to the office, demanding all patient and office records. Dr. D flew into a panic and called an emergency staff meeting, at which he ordered an office-wide audit of records and demanded that all patient records be shredded immediately.
At this point, Ms. V refused to shred documents, insisting that the records must be preserved. Her two coworkers also refused to comply with Dr. D’s instructions.
Dr. D was eventually arrested and charged with health-care fraud. He had been billing Medicare and other insurance companies for medication that hadn’t been dispensed, and for services that hadn’t been rendered. The office shut down, and Ms. V was served with a subpoena requiring her to testify for the prosecution at the trial.
Concerned about her own liability, Ms. V sought advice from a criminal defense attorney who advised her that as long as she cooperated in full — testifying truthfully about what had transpired — she would most probably not be held liable.
At trial, Ms. V was called to the stand and asked about Dr. D’s billing practices, and whether he was actually seeing the patients that he claimed to have seen. She was asked about medication dosages and whether they had actually been administered to the patients.
Although she was nervous, Ms. V testified truthfully about noticing that dosages had been changed in records, and that Dr. D had instructed them to give half the dose of epoetin alfa but record in the patient’s chart that a full dose had been given.
“Did you do that?” asked the prosecutor.
“No,” replied Ms. V. “I had not seen a patient requiring epoetin alfa after Dr. D instituted the new practice, and then he was arrested.”
Ms. V was excused. The other nurses testified similarly. Dr. D was convicted of 28 separate counts of health-care fraud. He was sentenced to five years in jail, ordered to pay more than $1 million in restitution, and his medical license was suspended.
Health-care fraud is considered a white-collar crime. In this case, the perpetrator filed incorrect health-care claims to make a profit. According to the FBI, health-care fraud comes in many forms — fraudulent billings, administering medically unnecessary services or prescriptions, kickbacks, duplicate claims, and more.
In this case, Dr. D billed Medicare and other insurance providers for patient care that he had not provided and for medication dosages that had not been given.
Ms. V was in a difficult position. Yet, when it became clear that Dr. D was doing something illegal, she had a duty to report it — especially since these actions could impact the health of patients.
Had Ms. V actually given a patient a half-dose of epoetin alfa as the physician ordered, and recorded in the patient’s chart that the patient had received a full dose, she might have been prosecuted as well, or sued. Health-care fraud is a significant problem in the United States. If you are aware that fraud is being committed, you must report it — to protect not only yourself, but your patients, too.
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.