When doctors disagree, one opinion is incorrect. The 11th U.S. Circuit Court of Appeals is set to decide whether an incorrect medical opinion is simply wrong or, in the legal sense, “false” as in fraudulent.
Though the case under appeal involves hospice care, forensic pathologists are nervous because the court’s decision could have repercussions.
AseraCare, a hospice provider, submitted certifications that its patients had less than six months to live as required for Medicare reimbursement. The government, believing that many of those patients had more than six months to live and that AseraCare knew it, filed charges under the False Claims Act.
The filing was based on the opinions of a doctor hired by the government who reviewed the medical records of 233 AseraCare patients and said most of them had longer than six months to live and were thus ineligible for Medicare benefits.
Writing in The Wall Street Journal, two lawyers who defend physicians accused of wrongdoing by the government point out that in preparation for trial in District Court, other doctors read the medical records and agreed with AseraCare that the patients had less than six months to live.
The government’s doctor also revisited the records and changed his mind about some of them. He thought several of the patients really were likely to die in six months. He explained his contradictory opinions by saying he “was not the same physician in 2013 as (he) was in 2010.” I presume he meant he had more experience.
U.S. District Court Judge Karon O. Bowdre was so alarmed by the contradictory opinions that when the jury agreed with the government that AseraCare’s death predictions were false, she overruled the verdict.
How, she asked, could a court conclude that a doctor’s opinion was “false” when other reasonable doctors, given the same information, agreed? When doctors disagree, is the thing they disagree about even a fact?
The government, fearing Judge Bowdre’s ruling would be “an impediment on the government’s ability to pursue those committing fraud against the United States,” appealed to the 11th Circuit.
In my field of forensic pathology, it’s quite common for medical examiners to testify to contradictory opinions based on identical information:
“This child’s fatal injuries are consistent with the short fall described by the caregiver.” / “Short falls are incapable of producing fatal injuries. These injuries are proof of child abuse.”“This man died because the police who restrained him used too much force and suffocated him.” / “This man died during restraint because the large amount of cocaine he’d snorted caused his heart to stop.”This baby has a constellation of findings indicative of fatal shaking, and the person who was with her at the time she became obviously ill is the guilty party.” / “This baby has a medical condition capable of causing these exact findings. Nobody is guilty of anything.”In the realm of fatal infant shaking, further parallels emerge. Years after testifying that a child was shaken to death, some medical examiners changed their minds and became advocates for the defense. Mellowed by further experience and convinced by evidence that findings once believed to be proof of shaking prove no such thing, they are no longer the same physicians they once were.
The Wall Street Journal article concludes with, “Professional disagreement should not be illegal.” The 11th Circuit may decide that in some cases, it is. I’m concerned that such a ruling could be the basis for charges against forensic pathologists.
Dr. Carol J. Huser, a forensic pathologist, served as La Plata County coroner from 2003-12. She now lives in Florida and Maryland. Email her at firstname.lastname@example.org.