Health
care fraud and kickback cases can be difficult to defend due to the amount of documentation and when there are numerous cooperating witnesses. A recent case, seemed
to have a number of weak, inconsistent witnesses who had already plead guilty and were caught in direct
mistruths and changing stories. However, the jury nevertheless convicted the doctor
defendant.
On August 23, 2018, after a six-day trial, a federal jury convicted Dr. Kanagasabai Kanakeswaran an internal medicine doctor with a practice located in Lancaster, California of one count of conspiracy to pay and/or receive kickbacks for Medicare referrals and four counts of receiving kickbacks for Medicare referrals.
The
government contended that the evidence presented at trial showed that from 2008
to 2016, Dr. Kanakeswaran and others engaged in a conspiracy to refer Medicare
patients to Star Home Health Resources (Star), a home health agency located in La
Verne, in exchange for illegal kickback payments. The government alleged that Dr. Kanakeswaran received
kickback payments in cash, as well as through checks payable to a company
Kanakeswaran owned, Digital Perfection Corporation.The defense denied that there were any payments for referrals.
The witnesses against the doctor who owned or operated Star or worked as marketers had all plead in a separate criminal case and were shown to have misrepresented numerous facts and were caught in a number of lies. The defense moved to dismiss the case based on prosecutorial misconduct and under Rule 29 but these motions were not successful.
The defense apparently was disappointed and surprised that the government put on witnesses who made inconsistent statements and lied at times. Cooperating witnesses can be viewed by the jury as trying to get their own sentences reduced in exchange for their testimony and often rely on other evidence and documents to see if their testimony can be corroborated.
The government alleged that as a result of the conspiracy, the owners and operators of Star submitted
claims to Medicare based on the Medicare beneficiaries that Dr. Kanakeswaran
referred to Star, and Medicare paid approximately $4.1 million based on those
claims to Star.
The defense sought unsuccessfully to keep this evidence out since the doctor did not submit the claims and was not relevant to whether there was a violation of the kickback statute. This shows, however, that due to the conspiracy count, a doctor can be held liable for the loss of billings which is the total amount billed by the party who received the improper referral.
This is why referral arrangements need to be carefully scrutinized. If they are found to violate the law, the civil and/or criminal penalties can be the total amount of the billings even if the services were medically necessary and provided. An improper referral turns every claim into a "false claim." It is a very harsh result.
Dr. Kanakeswaran is scheduled to be sentenced by United States District Judge
Philip S. Gutierrez on January 7, 2018.
Posted by Green and Associates, Attorneys at Law.
