In a motion for leave to file an amicus brief, the Association of American Physicians and Surgeons tells the Court that the criminalization of language used in medical reports will have a profoundly chilling effect on the practice of medicine.
In November, 2012, John Natale, M.D., of Chicago, a cardiothoracic and vascular surgeon, went to federal prison on charges related to difficult, life-saving operations on several patients performed nearly 10 years ago. The patients survived and did well despite an expected mortality of 90 percent.
Natale was accused of Medicare fraud because of billing under an AMA procedure (CPT) code allegedly representing a more complex operation than the one he did. He was acquitted by the jury on all counts related to fraud.
He was, however, convicted on two counts of making “false statements,” and Judge Rebecca Pallmeyer decided a prison sentence was needed to send a message to all physicians about the importance of accurate reporting for the financial stability of the Medicare program.
Natale routinely worked from 5:30 a.m. until late at night, and habitually was behind in dictating his operative reports. He incorrectly stated that he had used a bifurcation or Y-graft in repairing an abdominal aortic aneurysm, instead of the straight tube graft actually used. This made no difference in the billing, and there was no evidence that Natale “knowingly” and “willfully” made a false statement in order to violate the law.
The government refused consent for AAPS to file the brief; hence the need for a motion to the Court to accept it.
AAPS argues that the trial court erred in expanding the statute far beyond its legitimate scope, sweeping in misstatements “lacking materiality, lacking fraud, and lacking any proof of willfulness.” In other words, there was no proof of a mens rea, or criminal intent.