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new-logo25By Author-Contributor Jane M.  Orient, M.D., http://www.drjaneorient.com/credentials.php

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 As  cardiovascular surgeon John Natale, M.D., sits in federal prison, the Seventh  Circuit Court of Appeals in Chicago heard his appeal on April 18. The  implications of the case are profound, the judge noted: Any error in any medical  record related to a health program could be a federal crime.

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As cardiovascular surgeon John  Natale, M.D., sits in federal prison, the Seventh Circuit Court of Appeals in  Chicago heard his appeal on April 18.

After a seven-year  investigation, Dr. Natale was indicted for Medicare fraud. Unlike the majority  of federal defendants, who feel compelled to cave in by signing a plea bargain  even when innocent, Dr. Natale courageously exercised his constitutional right  to have a public trial. That is in itself considered an “obstruction of justice”  by our government. The conviction rate is more than 95 percent, and sentences censored doct may be much longer than those meted out to “cooperative”  defendants.

The jury found Dr. Natale  not guilty on all of the fraud charges. But he was convicted on two  counts of making “false statements” in his operative reports. Over his  objection, prejudicial diagrams were sent to the jury room, supposedly  representing the operation described in the operative report as well as the  operation that was actually done. As anyone can see, a Y-shaped graft (mentioned  in the operative report) is different from a tube-shaped graft (placed in the  patient, by the doctor’s own admission). The government had thereby emphasized a  false statement by Defendant.

The term “false statement”  suggests a deliberate lie, but it could be, as Dr. Natale said, a simple  mistake, made while a tired and overworked surgeon dictated a pile of reports  weeks after the surgery. The jury was not instructed that a false statement is a  crime only if made in a deliberate attempt to commit fraud—and, as the jury  determined, there was no fraud.

The fraud charges concerned  whether Dr. Natale had billed for an operation more complex than the one he did,  and were related to the upper end of the graft, not the lower end. All the  patients had an abdominal aortic aneurysm that involved the renal arteries, so  that the aorta had to be clamped above the branches supplying the kidneys. Dr.  Natale did a reconstructive procedure to strengthen the aorta, so he did not  have to cut the renal arteries off the aorta and sew them into the graft. There  is no precise AMA-copyrighted code for this, so Dr. Natale used the closest one,  which is not for a more complex procedure and which did not increase his payment.

After seven years of searching,  the government was able to come up with only five cases to include in the  indictment, all of them frail, elderly patients who would have died of rupture  of their weakened abdominal aorta without surgery, or of kidney failure from  inadequate surgery. All the patients survived and did well after surgery. The  key patient survived for nearly a year after Dr. Natale’s operation. Later,  after two very aggressive, likely unnecessary re-operations done by Dr. Natale’s  main accuser, she died.

At the appeal, the main argument  was not about justice, but rather about what the defense attorney did or did not  say during the trial. Did he “waive” or “forfeit” grounds for appeal by not  objecting to the jury instructions?

One judge referred to the need  to apply the law that was in effect in 2002-2004. Under more recent law, the  government’s burden of proof has been lightened. The mens rea or criminal intent  requirement is virtually gone. The prosecutor does not need to prove that a  doctor “knowingly and willfully” lied in order to pad his fee, only to show that  an incorrect AMA code was used and the doctor intended to get paid for his  work.

The implications of the case are  profound, the judge noted: Any error in any medical record related to a health  program could be a federal crime.

But if the rules change about  defense attorneys’ waiving their client’s rights by being insufficiently  assertive, the floodgates for appeals might be opened.

Let us hope that justice is done  for Dr. Natale. But to this observer who attended the appellate proceeding, it  looks as though the laws are increasingly designed to deter expensive care of  the elderly, and that the judicial system focuses more on procedural rules than  on substantive justice.

Doctors need to know that  anything in the medical record can be used against them—as can errors by their  own million-dollar attorney.

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About the  author/contributor:

jpeg bryantJane M. Orient, M.D., Executive Director of  Association of American Physicians and Surgeons, has been in solo  practice of general internal medicine since 1981 and is a clinical lecturer in  medicine at the University Of Arizona College Of Medicine. She received her  undergraduate degrees in chemistry and mathematics from the University of  Arizona, and her M.D. from Columbia University College of Physicians and  Surgeons. She is the author of Sapira’s Art and Science of Bedside  Diagnosis; the fourth edition has just been published by Lippincott,  Williams & Wilkins. She also authored YOUR Doctor Is Not In: Healthy  Skepticism about National Health Care, published by Crown. She is the  executive director of the Association of American Physicians and Surgeons, a  voice for patients’ and physicians’ independence since 1943. Additional information on health-related issues:  http://www.aapsonline.org// and http://www.takebackmedicine.com/.

Dr. Orient’s position  on Obama’s healthcare reform: “The Obama plan  will increase individual health insurance costs, and if the federal government  puts price controls on the premiums, the companies will simply have to go out of  business. The plan will deliver higher costs, more hassles, fewer choices, less  innovation, and less patient care.” 

Doctor Orient can be contacted for interviews and  further information at: (520) 323-3110 or  janeorientmd@gmail.com.

To view more of Dr. Orient’s op-ed releases go here: http://www.theconservativepundit.net/?page_id=1183

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Contributor &  author: Jane M. Orient, M.D., Executive Director of  Association of American Physicians and Surgeons, http://www.aapsonline.org/ (see Dr. Orient’s bio at the bottom of this release)

Interview – Contact Dr. Orient directly at  (520) 323-3110 or janeorientmd@gmail.com (reporters and journalists  welcome!)