Physicians and their Profession: Do Racketeering Rules Apply?
National Law Journal, Monday, August 28, 1989, p. 38. By Edward P. Richards, Daniel
J. Deters and Robin J. Gray
(Mr. Richards is Research Director for the National Center for Preventive Law
at the University of Denver College of Law. Mr. Deters and Ms. Gray are senior
students at the College of Law.)
One of the most controversial issues in medicine is the propriety of physicians
having a financial interest in medical businesses. Attorneys for physicians must
alert their clients to the risk of RICO actions posed by these financial interests.
There has been little medical RICO litigation.[1] This is partly due to a preoccupation
with antitrust litigation. More fundamentally, it reflects the belief among medical
care providers that violating their fiduciary duties is an ethical, rather than
a legal, problem. There is a voluminous literature on the ethics of physician
incentives.[2]
Other than Medicare/Medicaid fraud, this literature ignores potential criminal
law violations. These criminal law violations form the predicate acts necessary
for civil and criminal RICO actions against medical care providers. The risk of
medical RICO litigation has been increased by the recent ruling in H.J. Inc. v.
Northwestern Bell Telephone Company.[3]
In Northwestern Bell, the Supreme Court completed the expansion of RICO that began
with Sedima, S.P.R.L. v. Imrex Co.[4] In Sedima, the Court held that RICO did
not require that defendants be convicted of the underlying predicate acts that
constituted the pattern of racketeering. Sedima, however, did not unambiguously
define the pattern of racketeering that is at the heart of RICO. This allowed
the Circuit Court in Northwestern Bell to limit the scope of RICO by narrowly
defining the elements for a pattern of racketeering.
The Supreme Court reversed the lower courts' rulings in Northwestern Bell, holding
that the RICO pattern requirements were meant to have a broad reach. In particular,
the Court stressed that RICO was meant to apply to situations: ". . . in
which persons engaged in long-term criminal activity often operate wholly within
legitimate enterprises."[5] With this ruling, the Court
makes it clear that the actions of a legitimate business such as a medical care
enterprise can constitute the requisite pattern of racketeering for a RICO action.
The shifting economics of medical care has destroyed the traditional physician
patient relationship. Physicians were once independent practitioners who intermediated
between their patients and medical businesses such as hospitals and laboratories.
Now these businesses use financial incentives to manipulate patient care to benefit
a third party.
Managed care plans are systematic offenders. These include HMO's (health maintenance
organizations), PPO's (preferred provider organizations) and other insurance schemes
that provide financial incentives to reduce medical services provided to their
insureds. They may offer physicians a cash bonus for reducing hospitalizations
or referral to specialists. The most insidious strategy is to require the physician
to accept a total capitation payment.
Total capitation shifts the risk of insurance to individual physicians. The physician
or clinic group is allocated a fixed amount for the patient care. Services that
the physician cannot perform must be paid for out of this allocation. This is
a powerful incentive for the physician to not order tests or consult with other
physicians about the patient's care.
Many hospitals offer physicians incentives to hospitalize insured patients and
to not hospitalize indigent patients. These may be positive incentives, ranging
from subsidized office space to non-recourse loans, or negative incentives. Negative
incentives can include termination of medical staff privileges, usually in the
guise of a peer review proceeding.[6]
Some freestanding medical businesses such as laboratories use the fiction of physician
investors to reward physicians who choose their products and services. Others
just pay bribes based on the volume of products or services.[7]
The kernel of the legal problem posed by all of these deals is that the physician
patient relationship is a relationship of trust: a common law fiduciary relationship.
This relationship has:
. . . its foundation on the theory that the former [physician] is learned, skilled
and experienced in those subjects about which the latter ordinarily knows little
or nothing, but which are of the most vital importance and interest to him, since
upon them may depend the health, or even life, of himself or family. [T]herefore,
the patient must necessarily place great reliance, faith and confidence in the
professional word, advice and acts of the physician.[8]
Giving physicians incentives to violate their fiduciary duty violates both state
bribery laws and the federal mail and wire fraud statutes. These violations constitute
predicate acts for RICO. Potential plaintiffs include physicians who lose medical
staff privileges for not participating in illegal schemes, medical care providers
who lose business to providers who participate in illegal schemes, and third party
payors whose charges are inflated by such schemes. Plaintiffs need only be injured
by the pattern of racketeering, they need not be a direct target.[9]
State commercial bribery statutes have been drafted on the basis of the Model
Penal Code, Section 224.8 - Commercial Bribery and Breach of Duty to Act Disinterestedly:
(1)A person commits a misdemeanor if he solicits, accepts or agrees to accept
any benefit as consideration for knowingly violating or agreeing to violate a
duty of fidelity to which he is subject as:
. . .(c)lawyer, physician, accountant, appraiser, or other professional
adviser or informant; . . .
(3)A person commits a misdemeanor if he confers, or offers or agrees to confer,
any benefit the acceptance of which would be criminal under this Section.
The Model Penal Code broadly defines the "benefit or consideration" as: "gain
or advantage, or anything regarded by the beneficiary as gain or advantage."[10] It is clear that incentive
plans affect physician's clinical judgement.[11]
While incentives may not always work to the patient's detriment, it does not affect
their characterization as bribes. One may not defend a bribe by arguing that it
was meant to do good.
Violations of state bribery statutes are a predicate act for RICO only if the
violation can result in imprisonment for one year or greater. There are 9 states
that specifically list physicians in their bribery statute and provide for imprisonment
for a year or more.[12] In
these states, physician incentive plans are clearly predicate acts for RICO.[13] An additional 13 states
provide a one year penalty for bribing fiduciaries, without specifically naming
physicians.[14] Two states provide a one
year penalty for bribing agents.[15]
These laws would apply to incentive plans directed to physicians in their role
as the patient's agent for the procurement of medical care products and services.[16]
More problematic are the states that criminalize the bribery of fiduciaries, but
provide a punishment of less than one year in prison.[17] Technically, these states pose the same
legal question as states that only have common law prohibitions on bribery of
fiduciaries: "May interference with a fiduciary relationship be the basis of a
predicate act?"
Most RICO cases are based on violations of the federal mail and wire fraud statutes.[18]
Any fraudulent conduct that directly or indirectly uses the mails or telephone
is a violation of these laws. The courts use a very spacious definition of fraud
in mail and wire fraud cases:
"It is a reflection of moral uprightness, of fundamental honesty, fair play and
right dealing in the general and business life of members of society....[A]s Judge
Holmes so colorfully put it ´[t]he law does not define fraud; it needs no
definition; it is as old as falsehood and as versatile as human ingenuity.'"[19]
The Supreme Court reiterated the expansive reach of mail and wire fraud in Carpenter
v. United States.[20] In
Carpenter the Court affirmed the mail fraud conviction of a Wall Street Journal
reporter who used the Journal's confidential information in an inside trading
scheme. The reporter was held to have violated his fiduciary obligation to protect
his employer's confidential information.
The duty of fidelity between employer and employee and between physician and patient
are both common law duties. Paying physicians to violate their fiduciary duty
is legally indistinguishable from bribing employees to violate their duty to their
employers.
It has been argued that it is against public policy to apply RICO to medical care
enterprises. This implies that it is more reprehensible to conspire against a
person's business than his health. Given the Carpenter Court's concern with the
duty of fidelity, it is expected that the courts will deal harshly with enterprises
that attempt to compromise physicians' duties to their patients.
Attorneys who counsel medical care providers must assure that these clients do
not enter into business arrangements that encroach on the independence of the
physician patient relationship. The attorney must first determine if the incentives
violate any state or federal laws.
It is common for attorneys to approve plans that violate the letter of the Medicaid
fraud laws or state bribery statutes because these laws are seldom enforced. Enforcement
policy, however, does not prevent a private plaintiff from enforcing these laws
through a civil RICO proceeding.
If the plan comports with state and federal law, the attorney must then determine
the effect of the plan on physicians' relationships with their patients. Ideally,
the plan will be neutral, neither encouraging nor punishing some clinical decisions
over others. If the plan does affect clinical decision making, then it is critical
that the incentives do not adversely affect patient care.
Incentives that benefit the patient, such as allowing outpatient testing, are
most defensible. Incentives to reduce hospitalization may be neutral, but they
imply that the physicians are over hospitalizing patients. Incentives to reduce
care that clearly benefits the patient, such as consultation with specialists,
are clearly indefensible.
If the attorney chooses to recommend a plan that adversely impacts patient care,
then the effects of the plan must be fully disclosed to the patients. Full disclosure
includes telling the patients when they are being denied care because of financial
considerations. Full disclosure is not a complete defense, but it does reduce
the element of fraud. While few patients will have the money to purchase the care
themselves, they must not be denied that option.
Medical care attorneys and their clients face difficult decisions. Physicians
are under increasing pressure to compromise their professional judgement or lose
their patients. Attorneys who advise medical care providers must recognize that
contracts that interfere with physicians' fiduciary duties pose ethical problems
for both counsel and client.
[1.]But see: Winston v.
American Medical International, Inc., No. H-95-6193 (S.D. Tex. filed May 1987);
Maxicare v. American Medical International, Inc., No. C678061 (Cal. Super. Ct.
Los Angeles Cty. filed March 20, 1988); and Kantor v. American Medical International,
Inc., No. C635366 (Cal. Super. Ct. Los Angeles Cty. filed October 19, 1987).
[2.]For example, see: A.
Relman, "American Medicine at the Crossroads: Signs from Canada", 320 N. Engl.
J. Med. 590 (1989) and A. Hillman, "Financial Incentives for Physicians in HMO's:
Is There a Conflict of Interest?", 317 N. Engl. J. Med. 1743 (1987).
[3.]57 U.S.L.W. 4951 (1989)
[hereinafter Northwestern Bell].
[4.]473 U.S. 479 (1985).
[5.]at 4956, emphasis in
the original.
[6.]D. Fanning, "Medical
Benefits", Forbes p. 158 (October 3, 1988).
[7.]W. Bogdanich and M. Waldhole,
"Warm Bodies: Hospitals That Need Patients Pay Bounties for Doctors' Referrals",
Wall St. J. Vol CXX, #39, p. 1, col. 1 (Monday 27 Feb 1989).
[8.] Witherell v. Weimer,
421 N.E.2d 869 (1981). See also: Fure v. Sherman Hospital, 380 N.E.2d 1376 (Il
1978); Taber v. Riordan, 403 N.E.2d 1349 (Il 1980); Loudon v. Mhyre, 756 P.2d
138 (1988); and Hoopes v. Hammarger, 725 P.2d 238 (Nev. 1986)
[9.]Lewis v. Lhu, 696 F.
Supp. 723 (D.D.C. 1988).
[10.]MODEL PENAL CODE sec.
224.8 comment 1 (1980).
[11.]A. Hillman, et. al.,
"How do financial incentives affect physicians' clinical decisions and the financial
performance of health maintenance organizations?", 321 N. Engl. J. Med. 86 (1989).
[12.]ALA. CODE sec. 11.46.660
(1978); COLO. REV. STAT. sec. 19-5-401 (1983); HAW. REV. STAT. sec. 708-880
(1985); KAN. STAT. ANN. sec. 21-4405 (1988); MO. REV. STAT. sec. 570.150 (1979);
NEB. REV. STAT. sec. 28-613 (1985); N.J. REV. STAT. sec. 2C:21-10 (Supp. 1989);
OKLA. STAT. ANN. tit. 21, sec. 380 (Supp. 1989); TEX. PENAL CODE ANN. sec. 32.43
(Vernon 1989).
[13.]The court in U.S.
v. Gaudreau 860 F.2d 357, 358 (10th Cir. 1988) determined that a "knowing violation
of a duty of fidelity" can form the basis of a racketeering charge.
[14.]ALA. CODE sec. 13A-11-120
(1982); ARIZ. REV. STAT. ANN. sec. 13-2605 (Supp. 1988); CONN. GEN. STAT. sec.
53A-160, 161 (1985); DEL. CODE ANN. tit. 11, sec. 882 (1987); KY. REV. STAT.
ANN. sec. 518-020 (Michie/Bobbs-Merrill 1985); MASS. GEN. LAWS ANN. ch. 271,
sec. 39 (West 1985); MICH. COMP. LAWS ANN. sec. 750.125 (West 1968); MINN. STAT.
sec. 609.86 (1987); N.H. REV. STAT. ANN. sec. 638:7 (1986); N.Y. PENAL LAW sec.
180.08 (McKinney 1982); N.D. CENT. CODE sec. 12.1-12-08 (1976); PA. STAT. ANN.
tit. 18, sec. 4108 (Purdon 1983); S.D. CODIFIED LAWS ANN. sec. 22-43-1 (1988).
[15.]IOWA CODE ANN. sec.
722.10 (West 1979); R.I. GEN. LAWS secs. 11-7-3, 11-7-4 (1988).
[16.]M. Crane, "Why did
it take for long to nail this crocked doctor?", 20 March 1989 Medical Economics,
p. 54 (this journal does not use volume numbers).
[17.]ILL. ANN. STAT. ch.
38 para. 29A-1 (Smith-Hurd 1977); LA. REV. STAT. ANN. sec. 73 (West 1982); NEV.
REV. STAT. ANN. sec. 207.295 (Michie 1986); N.Y. PENAL LAW sec. 180.00, 180.05
(McKinney 1982) (commercial bribery and bribe receiving in the second degree,
but with punishment at least one year if second offense). See also VA. Code
Ann. sec 18.2-44(1988) and ME. Rev. Stat. Ann. title 17-a, sec. 904 (1983).
[18.]18 U.S.C. secs. 1341,
1343 (1982 & Supp. V 1987).
[19.]Gregory v. United
States, 252 F.2d 104, 109 (5th Cir. 1958), citing Weiss v. United States, 122
F.2d 675, (5th Cir. 1941), cert. denied 314 U.S. 687 (1941).
[20.]198 S.Ct. 316 (1987).
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