Colorado Doctor Convicted Of Health Care Fraud and Obstruction of Justice. Admitted Shredding Patient Charts During the Investigation.

A recent health care fraud trial focused on patients' insurance being billed for procedures not performed or with extensive patterns of upcoding as well as obstruction of justice for shredding charts during the investigation. On April 18, 2019, Dr. John Van Wu of Golden, Colorado was found guilty of mail fraud and obstruction of justice charges by a jury. The federal jury trial lasted one week before U.S. District Court Judge R. Brooke Jackson.  

According to court records and argument at trial, Dr. Wu operated a medical clinic at locations in west Denver between January 2011 and March 2015.  During that time period the government alleged that he billed employee benefit programs and insurers for services that were never actually rendered and not medically necessary.  

The obstruction charge arose from when he responded to a grand jury subpoena asking for patient files.  During the trial, over a dozen of the doctor’s former patients testified that they did not have many of the ailments described in those files and did not get the expensive procedures billed to insurance.  For example, the patient files described days-long nosebleeds followed by nasal cauterization procedures, but patients testified that neither happened.  Other files described diagnoses related to migraine headaches and frequent administrations of injections to treat those agents.  Patients testified that those, too, did not occur.  The government alleged that the patient files were fabricated.

Testimony at trial also supported the government's theory that Dr. Wu billed approximately 95% of his office visits as the longest, most complex, and highest-reimbursing type of office visit, despite the fact that his patients had relatively simple and routine ailments that did not need that level of service.  During his testimony, Dr. Wu admitted that he shredded patient files while the investigation was ongoing.

This is not the end of Dr. Wu's legal issues. He is separately charged with distributing oxycodone outside the usual course of medical practice and for no legitimate reason and for obstruction by falsifying patient charts related to those prescriptions.  Trial on those counts is scheduled to begin on July 8, 2019.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law

Sentencing Update: California Doctor Sentenced To 63 Months In Federal Prison For Health Care Fraud. Doctor's Testimony At Trial Resulted in Longer Sentence. Doctor Husband Sentenced to One Year and One Day. Case Is On Appeal.

In federal court, one important issue is whether to testify or not testify. It is a more critical issue in federal court due to a federal judge's ability to increase the sentence for "obstruction" if the judge thinks the defendant misrepresented the truth. 

These same concerns are in state court but there is not usually the concern about the impact on sentencing. Instead there is the usual concern about making it appear that the burden of proof has shifted to the defense.

In a recent case, a doctor defendant received a harsh sentence based in part on the judge adding time for "obstruction" due to her testimony at trial.  On August 28, 2018, family practitioner Dr. Vilasini Ganesh was sentenced to 63 months in prison for health care fraud and making false statements related to a health care benefits program. We had reported on this case previously after the 8-week trial when she and her partner were convicted.

During Dr. Ganesh’s sentencing hearing, Judge Koh specifically stated that Dr. Ganesh  "obstructed justice" by misrepresenting her understanding of the legal system, the amount of money she was paid by insurers, and whether she understood that it was improper to “upcharge” when submitting claims to insurers. The jury had rejected a defense as well that the doctor's mental state contributed to her lack of understanding of the billing rules.

St. Louis County Doctor Pleads Guilty to Obstructing FBI Investigation When He Responded to Subpoena Requesting Medical Records

One way for the government to build a case against someone is by issuing a subpoena for records and seeing whether the business or person responding produces record that are false or misleading. This allows the government to not have to prove fraud or other criminal acts.

On July 13, 2018, Dr. Vidal Sheen of St. Louis County, Missouri pled guilty to obstructing an investigation by the Federal Bureau of Investigation (“FBI”) regarding whether he billed the Medicare program and private insurers for “face to face” office visits performed on dates when he was actually traveling outside of Missouri, and sometimes traveling outside of the United States.

According to his plea agreement, Dr. Sheen operated a medical office in St. Louis County, Missouri.  At the medical office, Dr. Sheen created medical records using a template that  recited patients’ symptoms and histories, and sometimes recorded vital signs (e.g. pulse rates) that did not change between patients’ visits. 

Moreover, from time to time, Dr. Sheen traveled to various destinations, including the Dominican Republic and Florida.  For the times when Dr. Sheen was out of town, the government alleged he created office notes with false entries reflecting that he had seen patients in his office, using his electronic signature.  Dr. Sheen's medical records did not discuss the role of the other employees in his office during the out-of-town visits, or his absence from the office on the dates of service. 

The United States served Dr. Sheen’s office with a subpoena requesting medical records regarding his office visits in late 2016.  In response to the subpoena, on December 1, 2016, Dr. Sheen produced medical records to the FBI in which he had made entries about face-to-face office visits when he was out of town.

Former Dept of Justice Attorney Sentenced To 30 Months For Obtaining Information About Companies Named in Qui Tam Lawsuits and Using That Information in Private Practice.

Sometimes clients will believe that by hiring attorneys who have just left the government, they can obtain confidential information. While those attorneys have relationships with the other attorneys and agents, they have strict ethical rules where they cannot use information from a case they worked on in private practice. 

In an unusual and sad case, former Department of Justice attorney Jeffrey Wertkin was sentenced on March 7. 2018 to 30 months in prison for obstruction of justice and transportation of stolen property following a guilty plea last November relating to his "theft" of confidential information and documents on cases he personally was not working on and using it to obtain private clients.    

According to his plea agreement, Mr. Wertkin of Washington, D.C., worked for the Civil Fraud Section of the Department of Justice from October 24, 2010, until April 12, 2016. During that time, he worked on qui tam actions pursuant to which the government investigated companies suspected of breaking the law.  

Federal courts often order qui tam complaints “sealed” and therefore kept from public view until it is appropriate for the complaints to become public.  In his plea agreement, Mr. Wertkin admitted that during the last month of his employment as a trial attorney with the Department of Justice, he began secretly reviewing and collecting sealed qui tam complaints that were not assigned to him.