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Defending Doctors from Federal Criminal Prosecution

Posted by Dmitry Gorin | Feb 02, 2024

Medicine is a rewarding profession, but also one that is strictly regulated. While delivering healthcare, physicians sometimes face legal scrutiny—and at times, they may even be accused of violating federal laws. 

If you're a physician facing federal criminal prosecution, the consequences may be severe, impacting your career, personal life, and even your freedom. 

Defending yourself successfully against these types of charges requires the assistance of a skilled federal criminal defense attorney with specific experience in healthcare-related legal issues.

Defending Doctors from Federal Criminal Prosecution

There are recent federal cases across the United States where doctors are facing Medicare and Medicaid fraud accusations and extensive healthcare audits. Physicians typically treat many federally insured patients, making them prime marketing targets for home healthcare and hospice care programs, which are highly scrutinized fields for healthcare fraud.

Another vital service doctors provide is also seen as a potentially suspicious activity, which is prescribing controlled substances. Across the United States, federal prosecutors have indicted primary care doctors for criminal violations of the Controlled Substances Act.

In many cases, prosecutors claim that doctors prescribe medically unnecessary opioids or fentanyl. Sometimes, a routine healthcare or ZPIC audit becomes a formal criminal investigation.

As a result, doctors and other healthcare professionals charged with healthcare fraud risk losing their licenses, reputations, and careers.  Federal prosecutions can include fraudulent home healthcare certifications, fraud related to hospice care patients, opioid investigations, and cases associated with Blue Cross, Aetna, Medicare, and Medicaid billing fraud.

Suppose your medical practice is under audit by commercial insurance plans, or you were notified of a patient complaint against you related to controlled substance prescriptions. In that case, you should contact a federal defense lawyer immediately. 

What Are the Common Types of Federal Crimes Doctors May Face?

Physicians are held to strict standards of care governed by numerous federal statutes. Alleged violations of these can lead to serious criminal charges. Some federal offenses to which doctors may be vulnerable include, but are not limited to:

  • Health Care Fraud (18 U.S.C. 1347): This is one of the most common federal charges against medical professionals. It involves knowingly submitting false claims or making false statements about government-backed healthcare benefits, items, or services for financial gain. An example is billing for services not rendered or upcoding services to receive higher insurance reimbursement.
  • Illegal Distribution of Controlled Substances (21 U.S.C. 841 and 21 U.S.C. 846): Physicians are responsible for prescribing medication ethically and legally. However, doing so outside of federal guidelines and without legitimate medical purpose falls under illegal distribution, and a physician could face numerous federal charges for this type of activity. Overprescribing opioids or running so-called "pill mills" often attract the scrutiny of federal prosecutors.
  • Kickback Schemes (42 U.S.C. 1320a-7b): Participating in schemes where physicians receive financial incentives for referrals or prescribing specific medications or treatments is illegal under the Anti-Kickback Statute. These actions can lead to federal charges due to the potential compromise of patient care and misuse of federal healthcare funds.
  • False Claims and Improper Billing: Submitting false claims to government healthcare programs like Medicare and Medicaid is a federal offense under the False Claims Act (31 U.S.C. 3729-3733). This includes practices like billing for unnecessary medical procedures or charging for more expensive services than those provided.

Each of these crimes (along with others) carries significant legal implications, and accusations can stem from various sources—including patients, other healthcare professionals, insurance companies, or government agencies. 

What is the Legal Definition of Health Care Fraud?

18 U.S. Code 1347, Health care fraud, says “(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice - 

(1) to defraud any health care benefit program; or

(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than ten years, or both. 

If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title, imprisoned for not more than 20 years, or both.

If the violation results in death, such person shall be fined under this title or imprisoned for any term of years or for life, or both.

(b) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to violate this section."

What Are the Common Defenses Against Federal Charges?

When faced with federal criminal charges, physicians have several defense strategies. Some commonly employed defenses in cases involving doctors include, but are not limited to:

  • Lack of Intent: The prosecution must establish criminal intent for many federal crimes. This entails proving that the doctor purposefully participated in fraudulent or illegal activities in healthcare. A defense strategy may involve presenting evidence that any questionable actions were not motivated by fraudulent intent but could have resulted from administrative errors or misunderstandings of complex healthcare regulations.
  • Good Faith: This defense is particularly pertinent in instances concerning the prescription of drugs. Suppose a physician can demonstrate that prescriptions were dispensed in good faith, grounded in sound medical judgment, and in compliance with accepted medical standards. In that case, they may effectively counter allegations of illegal distribution. This defense underscores the importance of meticulous patient evaluation, thorough documentation, and a well-founded rationale for treatment strategies.
  • Procedural Defense Mechanisms: This entails contesting the legality of the methods employed by federal prosecutors to collect evidence, such as through unauthorized search and seizure. Infringements on a physician's procedural rights during the investigation could result in the exclusion of evidence or even dismissal of charges.
  • Defense Based on Insufficient Evidence: A defense may also rest on the prosecution's inability to present sufficient evidence to prove the physician's guilt beyond a reasonable doubt. Illuminating the shortcomings or inconsistencies in the prosecution's case can be a potent strategy.
  • Entrapment Defense: Though less frequent, entrapment occurs when a law enforcement officer persuades an individual to commit a crime they would not have committed otherwise. If a doctor can show evidence of entrapment, it can serve as a persuasive defense against criminal charges.

Navigating federal criminal charges as a physician requires a specific skill set and an excellent working knowledge of healthcare law. Working with a federal criminal defense attorney with experience in this area and a strong understanding of the nuances and challenges involved in defending doctors against federal prosecution is crucial. 

Physicians can protect their rights, reputation, and livelihood with the right defense strategy and legal representation. Contact our law firm for more information. Eisner Gorin LLP has offices in Los Angeles, California.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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