Recent Case Highlights Liability Landmines for Physicians

January 26, 2017

Some physicians will have a lot more to worry about this year than having to lose 10 pounds or improving their healthy eating habits.

We are less than a month into 2017 and the items in my article, 2017: Five Issues Physicians Should Watch have already come to light.

In my conversations with both friends and physicians, the majority of people put improving their health or losing weight as their top personal focus and/or professional advice for January. For the individuals who were either indicted and/or paid significant fines in relation to their fraudulent healthcare billing activities, their focus is a bit different. One case serves as an important reminder for physicians for three key reasons:

1. The U.S. Government is going to continue to enforce healthcare fraud through the False Claims Act and other healthcare laws; 

2. It is essential that physicians fully investigate their potential business partners and who they contract with to provide services; and 

3. Take care in billing accurately for services performed, as well as not performing tests and procedures for revenue purposes only.

Failure to consider these three items can leave providers in a position similar to those highlighted below.

On Jan. 8, 2017, Aria O. Sabit, a Detroit-area neurosurgeon was sentenced to nearly 19.5 years in prison for participating in a $2.8 million healthcare fraud scheme. What makes this case particularly egregious is that the physician performed medically unnecessary spinal surgeries on several patients; thereby, not only submitting fraudulent bills but also knowingly causing bodily harm to the patient. Moreover, when spinal services were performed, they were linked to his financial incentives with Apex Medical Technologies, LLC - a spinal implant company. Dr. Sabit also unlawfully distributed controlled substances. Given the current opioid epidemic, it is undisputed that writing prescriptions that are medically unnecessary are costly - not only to the patient, but to society as a whole.

According to the U.S Department of Justice, Sabit was a licensed neurosurgeon who owned and operated the Michigan Brain and Spine Physicians Group, which had various locations in the Eastern District of Michigan. In connection with his guilty plea, Sabit admitted that he derived significant profits by convincing patients to undergo spinal fusion surgeries with "instrumentation" (medical devices designed to stabilize and strengthen the spine) that he never performed and billed public and private healthcare benefit programs for those fraudulent services. Sabit further admitted that, in some instances, he operated on patients and dictated in his operative reports, which he knew would later be used to support fraudulent insurance claims that performed spinal fusion with instrumentation, when he had not. Specifically, Sabit fraudulently billed public and private health care programs for instrumentation when, in fact, he used cortical bone dowels made of tissue. Sabit failed to render services in relation to lumbar and thoracic fusion surgeries, including in certain instances, billing for implants that were not provided.

Before moving to moving to Michigan, Sabit was a resident of Ventura, Calif. and a licensed neurosurgeon in California. Sabit admitted that, in approximately February 2010, while he was on the staff of a California hospital, he became involved with Apex Medical Technologies LLC (Apex), which was owned by another neurosurgeon and three non-physicians. In exchange for the opportunity to invest in Apex and share in its profits, Sabit agreed to convince his hospital to buy spinal implant devices from Apex and to use a substantial number Apex spinal implant devices in his surgical procedures. Sabit further admitted that he and Apex's co-owners concealed Sabit's involvement in Apex from the hospitals and surgical centers."

In sum, Sabit's actions violated a cornucopia of laws, professional responsibilities and moral obligations. His 235 month prison sentence should serve as a warning that the U.S. Government has and will continue to enforce healthcare fraud and other violations, that business relationships should be fully vetted and approved by competent legal counsel, and that physicians should be cognizant that the services that they are performing and prescriptions they are writing are medically necessary and accurately billed. Prison time is a far cry from having to worry about losing 10 pounds as a New Year's resolution.