As a surgeon, I often tell patients facing surgery to get a second opinion. Although I may be confident in my opinion, if I sense reluctance in the patient I will suggest they discuss their situation with another surgeon.
This process usually happens before surgery or other medical procedures. But now the government is using second opinions after treatment to accuse the doctor of fraud.
Kyle Clark and Andrew George are lawyers who are members of the Mid-Atlantic Innocence Project. Writing in The Wall Street Journal, they share the lurid details of government oversight gone astray.
Dr. Richard Paulus, a renowned cardiologist in eastern Kentucky, has been inserting stents into blocked coronary arteries to save lives for the last 21 years. Due to his stellar reputation, his volume of patients brought his name to the attention of government prosecutors looking for ways to prevent fraud. The large number of bills submitted by Dr. Paulus was the only reason he was investigated.
These federal prosecutors hired a pair of other doctors to review the past cases of Dr. Paulus to determine if they warranted insertion of stents. In some of these cases the doctors working for the government disagreed with Dr. Paulus as to the severity of arterial blockage. Paulus had estimated 60% blockage in some cases, while the other doctors’ estimation was 30% or less. The government then declared Dr. Paulus guilty of unnecessary procedures as part of a scheme to defraud Medicare, Medicaid or private insurance companies.
The basis for this conclusion was two previous federal appellate court rulings that cardiologists can’t reasonably disagree by more than 10% to 20% about arterial blockage. This is a legal standard, not a medical one. Doctors can certainly disagree widely about the degree of blockage.
Clark and George have found 93 examples in scientific journals in which two cardiologists disagreed on the severity of a blockage by more than 40%. Sometimes they even disagreed by 100%, meaning one thought the artery was wide open while the other thought it was entirely blocked!
The judge who presided over Dr. Paulus’ trial understood this better than the jury. Judge David L. Bunning overruled the jury when they brought a guilty verdict and granted an acquittal.
The federal prosecutors in the Paulus trial refused to accept Judge Bunning’s acquittal. They appealed to the Sixth U.S. Circuit Court of Appeals. The Appeals Court overturned Judge Bunning’s acquittal without disputing the 93 examples given by Clark and George to refute their opinion. Sentencing is scheduled for March, 2019.
This disturbing example of government oversight gone astray has frightening implications. When doctors can lose their freedom over a simple difference of opinion, we are all at risk for compromised healthcare. The next time a cardiologist considers inserting a life-sustaining stent in your artery, he or she may remember this case and pass on the chance. If you die from a heart attack soon thereafter, who will your family sue, the government or your doctor? The government is obviously more concerned about saving money than about saving your life.