Kentucky Doctor Goes to Prison for Billing Fraud: Part 2.

The Sentencing of a Cardiologist.

For someone like myself, yesterday’s sentencing hearing in federal court was educational– even though many of my questions went unanswered. Had I not already known from earlier reporting of civil lawsuits against Dr. Sandesh Patil that he has been accused of performing hundreds of medically unnecessary cardiac angioplasties and indeed, pleaded guilty to falsifying medical records to collect payment from Medicare for at least one case, I would not have known why he was going to jail.

Because Dr. Patil pleaded guilty, the US attorney’s office did not have to present in court all of the evidence it and the FBI had collected. It did not have to call in medical experts to testify whether or not the procedures performed at St. Joseph London were medically necessary or not. This method of settling cases is apparently quite standard and is considered to be an efficient use of the courts time and public resources. I cannot quarrel with that general policy.

However, it appears that all the undisputed information collected by the extensive investigation is now sealed and not available to the public. This does trouble me! I previously offered my opinion that I believe the best interests of all involved; the patients, the public, St. Joseph London Hospital, KentuckyOne Health, Medicare, other health payers, and even Dr. Patil are best served by more complete disclosure and accountability. Sunshine disinfects. No one should have to continue to serve the public under a cloud. After all, reinforcing trust in the medical community was one of the stated goals of the sentencing proceeding.

Introduction and Overview.
As he began his explanation and justification of the 30 month sentence,  Judge Gregory F. Van Tatenhove asked the rhetorical question, “Is there a disconnect” between the crime and the punishment? In the end, he believed that the sentence was “sufficient but not excessive.” The judge however, had all the facts before him. We do not. From my perspective, a substantial disconnect remains.

In his plea of guilty from last spring, Dr. Patil admitted to falsifying a single bill for a procedure that he maintained was medically necessary. Doctors, hospitals, and other health providers submit millions of faulty bills yearly but do not have their liberty taken away. What really happened? The answers would have been found in the “pre-sentence investigation report” which was sealed and hidden from public inspection because it contains “personal information.” Presumably this is the names and other personally identifiable information of the patients involved. I appreciate and support such protections, but surely a redacted version could have been made available. As it is, those of us who value medical safety, quality, fully informed consent, and accountability are left in the dark. Perhaps there remain sources of information of which I am unaware. I will try to find them. I hope you will help.

Dr. Patil’s plea agreement acknowledged a potential sentence of from 30 to 37 months in prison. In the end, he received the lowest sentence within that range. Mandatory sentencing guidelines in federal court largely constrain what occurs. The US attorney, Dr. Patil’s attorney, and the judge all addressed a number of factors that have to be considered in determining a sentence. These include:

  • Nature and circumstances of the offense.
  • History and characteristics of the defendant.
  • Reflect the seriousness of the offense.
  • Promote respect for the law.
  • Provide just punishment for the offense.
  • Afford deterrence to criminal conduct.
  • Protect the public from further crimes of the defendant.
  • Provide the defendant needed educational, vocational, or health services.

Summary of the Hearing.

Let me say before going on that because no recording devices were allowed in the courtroom, I write this article based on extensive notes, and my memory. Perhaps the proceedings were recorded or a transcription available. I certainly want my comments to be accurate.

The Federal Prosecutor.
The federal attorney, Andrew L. Sparks, began by recognizing the defendant’s extensive education and good family. He believed the public would be protected because of future restrictions on medical practice. However he stressed that deterrence was necessary. Doctors must be able to be trusted. “Doctors need to see that these things will be prosecuted.” A meaningful sentence was considered necessary to promote respect for the law. Even though the defendant’s career was in ruins, the recommended range of sentences should be accepted.

The Defendant’s Attorney.
The defendant’s attorney, Mr. Brian Butler, acknowledged that the public trust was violated, “not to harm patients,” but for reimbursement. He stressed that the defendant was an upstanding member of society and a “good doctor until this came along” with no prior convictions. He noted that the future employment implications of this case effectively destroyed Dr. Patil’s medical career but was “of his own making.” He stated that this professional punishment was worse than what the court might do this day. It was stressed that the defendant was upfront and had cooperated with the prosecutor fully from day one knowing that he would go to jail and lose his license. His willingness to lose his privileged position and go to jail displayed “strength of character.” For these reasons, the low range of sentencing was requested.

Dr. Patil Speaks for Himself.
The defendant made a brief statement that he said he prepared himself. He regretted his actions and said his motives were never to hurt or harm. He took full responsibility for fraud. He expressed remorse for the fact he failed his own standards. He asked for leniency.

The Judge Speaks.
The judge began his comments with a summary of the calculated number of sentencing “points” that was Greek to me (but also appears in the plea agreement.) Apparently a total of 19 points in the sentencing matrix were present. By agreement, one point was deducted because of the defendant’s willingness to accept responsibility.

The judge was upfront in expressing that “this is a serious crime.” Your misrepresentations led to “stealing” from all of us. Your actions contributed to the cynicism of waste and poor public policy in healthcare. These actions were described as detrimental in the long term. He told the defendant that you chose a fraudulent standard and applied it extensively. He stated that just punishment is needed.” And that “you owe us a debt.” Taking your liberty away is part of that punishment.

Considering the nature and circumstances of the offense, the judge stated that there were no mitigations; indeed aggravating factors were present because of the amount of the money involved. He recognized there would be unintended consequences for patients and their families. Surprisingly to me, the defendant’s attorney offered as mitigation that the physician had to do a certain number of procedures to trigger his salary increments. The judge heard this excuse the same way I did and strongly responded that this was not a mitigating factor at all, but indeed aggravating.

In the end, the judge emphasized personal characteristics. He described the defendant as a person of some accomplishment who had the benefit of education and parental support. He stated that the defendant had contributed to our community in a positive way and that “you get credit for that.” It was my interpretation that it was largely for these reasons a sentence at the bottom of the range was handed down.

The Sentence.
The final result was a sentence of 30 months in a federal corrections facility in Texas. The issue of probation was not addressed. Following incarceration will be a period of three years of supervised release (probation). The probationer is prohibited from owning a firearm. Because the defendant was considered to be at low risk for substance abuse, no drug testing was required. Because the defendant had lost his ability to practice medicine and is the subject of numerous civil lawsuits, no fine was added. There were no objections from the attorneys and appeals were waived by  agreement.

Was Justice Done?
I am sure that all the above would be familiar and well understood by the lawyers among us. As a layman and a physician, and based on available official public documents alone, I don’t know why Dr. Patil is going to jail. Only if I believe the claims in the untried civil suits can I truly be confident that justice was done or not.

Other Final Comments.
Reading between the lines, Dr. Patil’s cooperation with the prosecution (which was evident even at the hearing) was stressed to the point that it occurred to me he may be cooperating with additional prosecutions of other physicians or institutions.

The almost throw-away line that Dr. Patil was doing what he did because of having certain productivity targets to maintain his salary was to me a shocking and embarrassing admission. The issue of who Dr. Patil’s employers were or what institution effectively controlled the activities of his medical practice remains in my opinion, unanswered. Hospitals and other organizations are rapidly hiring up a majority of physicians whose salaries are tied in one way or another to their “productivity.” How to understand and manage the public policy consequences of this earthshaking shift in the organization of physicians is of critical importance to policymakers and the public. Cases like this one point out the inherent dangers of the new employee (actual or employee-in-effect) models.

I still do not know how this case was initiated. Was it an anonymous letter to the Medical Licensure Board? Was it from self-reporting by St Joseph London? Something other? Why was it considered worthy of prosecution?

Without a doubt, the most disconcerting thing I heard (and more than once) were the un-rebutted comments that the defendant did not intend to injure his patients, and indeed, that no patients were injured. I can foresee attorneys in future actions raising these findings in defense. If in fact, as the civil actions claim, medically unnecessary angioplasty with placement of stents was performed, then there are hundreds of patients walking around with permanent foreign bodies in their coronary arteries who require lifelong expensive and risky anticoagulation. I am not aware that these medical issues were adjudicated in the prior proceedings to this hearing. In my opinion, these statements of lack of harm should be considered unconfirmed.

More to Come.
This story in Kentucky has not yet played out. This London chapter is just beginning. I am told another Kentucky cardiologist and hospital have recently been served with lawsuits similar to those in Laurel County. The recent extensive report by Bloomberg News tells us of a nationwide epidemic of angioplasty abuse. The issues involved include more than just cardiac procedures. Withholding of information will not serve either our local or national public interests. I urge our pubic servants to find some creative ways around unnecessary impediments to full and fair disclosure.

Peter Hasselbacher, MD
President, KHPI
Emeritus Professor of Medicine, UofL
October 2, 2013

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