Dr. Skin has been a successful dermatologist for over 20 years. Ten years ago, recognizing that his office expenses continued to rise despite decreasing revenues from his medical dermatology patients, Dr. Skin decided to offer some cosmetic treatments to his patients. After taking several courses, he opted to provide his patients with both dermal filler and neuromodulator injections.
His financial situation began to improve and Dr. Skin decided to bring laser treatments into his office. After considering various possibilities, he bought an intense pulsed light source laser (IPL) because such technology has been used to treat vascular and pigmented lesions as well as to remove unwanted hair and provide facial rejuvenation.
Unfortunately, the initial burst of increased revenues from these cosmetic treatments waned and Dr. Skin was left with the dilemma of trying to make his monthly cosmetic device lease payments without the requisite income required to support the payments. He decided to become creative after he noticed that some of his older IPL-treated patients appeared to have a decrease in facial actinic keratoses after their treatment.
Over the course of the next few years, Dr. Skin used his IPL to treat virtually every actinic keratosis patient and coded for a medical destructive treatment. Both Medicare and non-Medicare patients were treated in this manner, generating hundreds of thousands of dollars in extra revenues for Dr. Skin.
Ultimately both private carriers and his Medicare carrier (by way of the US Department of Justice) audited his medical records and accused Dr. Skin of fraudulently using medical based coding for cosmetic IPL procedures. Dr. Skin seeks legal help. His attorney advises him that if he is found guilty of committing fraud, he faces both civil penalties as well as possible jail time. Is this true?
Both the Department of Justice (DOJ) and Dr. Skin are able to find experts to support their views. The DOJ expert argues that IPL is sold by industry and used by providers for cosmetic purposes. Furthermore, the DOJ expert argues that there are numerous more effective ways to treat actinic keratosis, including cryotherapy, topical chemotherapeutic agents and photodynamic therapy (PDT). The DOJ expert argues that IPL treatment of actinic keratosis is not the standard of care. Dr. Skin brings an expert who argues that there is both U.S. and European data that shows IPL treatment can lead to improvement in actinic keratoses. He argues that, although IPL is not usually used for the treatment of actinic keratoses, it can be considered as an alternative treatment modality consistent with the standard of care.
Which expert is correct?
The standard of care is not necessarily derived from some well-known textbook. It is also not articulated by any judge. The standard of care is defined by some as whatever an expert witness says it is, and what a jury will believe. In a case against any medical specialist, the specialist must have the knowledge and skill ordinarily possessed by a specialist in that field, and have used the care and skill ordinarily possessed by a specialist in that field in the same field in the same or similar locality under similar circumstances. A failure to fulfill such duty may represent a breach in the standard of care. If the jury accepts the suggestion that Dr. Skin fraudulently coded, then he will be liable. Conversely, if the jury believes an alternative view, then there will be no liability. In this view, the standard of care is a pragmatic concept, decided case-by case, and based on the testimony of the physician and the experts.
It is important to note that where there are two or more recognized methods of treating the same condition, a physician does not fall below the standard of care by using any of the acceptable methods even if one method turns out to be less effective than another method. Finally, in many jurisdictions, an unfavorable result due to an “error in judgment” by a physician is not in and of itself a violation of the standard of care if the physician acted appropriately prior to exercising his professional judgment.
Evidence of the standard of care in a specific situation includes laws, regulations, and guidelines for practice, which represent a consensus among professionals on a topic involving diagnosis or treatment, and medical literature, including peer-reviewed articles and authoritative texts. In addition, obviously, the view of an expert in crucial. Although the standard of care may vary from state to state, it is typically defined as a national standard by the profession at large.
Most commonly for litigation purposes, expert witnesses articulate the standard of care. The basis of the expert witness, and therefore the origin of the standard of care, is grounded in the following:
- The witness’ personal practice and/or
- The practice of others that he/she has observed in his/her experience; and/or
- Medical literature in recognized publications; and/or
- Statutes and/or legislative rules; and/or
- Courses where the subject is discussed and taught in a well-defined manner.
With expert opinions on both sides, it will be up to a jury to decide if Dr. Skin committed fraud in his coding.
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