The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Defendants' Motion for Summary Judgment (Doc. 144) and Memorandum in Support Thereof (Doc. 145). Relators filed a Response (Doc. 159) thereto, to which Defendants submitted a Reply (Doc. 160). After full briefing of the summary judgment motion, Defendants made a Motion for Oral Argument (Doc. 162) thereon. Defendants also filed a Motion for Sanctions (Docs. 168, 169), to which Relators submitted a Response (Doc. 171) and Defendants filed a Reply (Doc. 180)
For the following reasons, the Court, inter alia, DENIES Defendants' summary judgment motion.
Brought at the close of 2003, this case has languished for over seven years. With an impending trial date of January 18, 2011 "set in granite," Defendants filed the instant motion in a final effort to have this case resolved by the Court rather than a jury.*fn1 The meritoriousness of this effort will be analyzed following a detailed, yet as-succinct-as-possible, review of the case's facts and relevant procedural posture.
In analyzing a motion for summary judgment, the reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The Court, construing the evidence and all reasonable inferences in the light most favorable to the non-movants, finds as follows:
Sometime in 1999, Relator Marsha Turner (hereinafter "Turner") began working as a receptionist and, eventually, the business manager at Defendant Michaelis Jackson & Associates, L.L.C. (hereinafter "the Practice"). The sole member and manager of the Practice is Defendant Dr. Michaelis Billy Jackson (hereinafter "Dr. Jackson"), a board-certified ophthalmologist. Relator Carolyn Swartos (hereinafter "Swartos"), the former proprietor of a medical consulting practicing group called Logos Management Group, worked as a private consultant that did billing and collection work for the Practice, including an audit of the Practice's medical records in 1999.
Over time, Turner and Swartos (hereinafter collectively referred to as "Relators") became convinced that Dr. Jackson and the Practice (hereinafter collectively referred to as "Defendants") were billing Medicare for procedures that were not being performed or that were medically unnecessary. While Relators were never in an exam room when Dr. Jackson examined patients and were unfamiliar with the medical procedures that he performed, Turner's sister, Donna Cobin (hereinafter "Cobin"), substantiated their feelings of distrust. Cobin could sometimes be found next to Dr. Jackson during an examination. Cobin briefly worked at the Practice and became one of its certified ophthalmic assistants.
To understand Cobin's job as a certified ophthalmic assistant, the Court must briefly chronicle how appointments with the Practice were handled. When one had an appointment with Dr. Jackson, there were typically two other individuals that met with the patient in the examination room.*fn2 One of these individuals was a "tech," who put the patient in the room and conducted necessary preliminary testing, including visual acuity and brightness acuity tests by way of the Snellen eye chart. The other individual was a "scribe," who took notes of the primary examination, including what Dr. Jackson called out while studying the patient's eyes at the slit lamp. The scribe could not see what Dr. Jackson saw in the slit lamp. Cobin routinely acted in either capacity and occasionally acted in both capacities.
Cobin bolstered Relators' suspicions of false billing with respect to the following four procedures: 1) gonioscopies; 2) extended ophthalmoscopies; 3) cataract surgeries; and 4) YAG laser procedures. The billing of these four procedures from 1999 through 2003 is all that is at issue in this case. In order for the parties and the Court to effectively review Dr. Jackson's billing of these procedures, only a sampling of Dr. Jackson's patient files are in dispute. Specifically, Relators hand-selected 200 of Dr. Jackson's patient records that they thought were most likely to show fraud, and 25 of these (hereinafter collectively referred to as "trial records" or "trial patients" and individually referred to as "Patient 1," "Patient 2," etc.) were randomly selected as a "probe sample" of the alleged misconduct. The Court then bifurcated the case so it could first determine any liability with respect to the trial patients.
Limited to the medical records of the trial patients, Relators argue that they can show 29 false claims for gonioscopies, 167 false claims for extended ophthalmoscopies, 36 false claims for cataract surgeries, and 37 false claims for YAG laser capsulotomies. Each of these procedures and Defendants' respective billing practices will be addressed in kind, including any relevant lay and expert witness testimony.
A gonioscopy is an "examination of the angle of the anterior chamber of the eye with the gonioscope [an optical instrument for examining the angle of the anterior chamber and for demonstrating ocular motility and rotation]." Dorland's Illustrated Medical Dictionary 809 (31st ed. 2007). The parties agree there is no regulation that governed the billing of gonioscopies during the relevant time frame.
In the early years of the Practice, Dr. Jackson did not know Medicare could be billed for gonioscopies, and he did not perform them. When Dr. Jackson discovered a billing code existed for the procedure, however, he began to perform multiple gonioscopies a day. Curious about the sharp rise in the number of gonioscopies, Turner asked Cobin if Dr. Jackson was indeed performing them, to which she responded that he actually performed very few. Cobin knew this because, when acting as a scribe, she personally witnessedDr. Jackson calling out results for gonioscopies that he did not perform, although she could not remember if such impropriety occurred during a trial patient's examination. Relators and Cobin are now of the opinion that Dr. Jackson billed Medicare for gonioscopies he did not in fact perform.
Dr. Andrew Dahl (hereinafter "Dr. Dahl"), a board-certified ophthalmologist that has performed countless gonioscopies, concurs with the opinion of Relators. Unlike Dr. Stephen Kamenetzky (hereinafter "Dr. Kamenetzky") and Dr. Steven Williams (hereinafter "Dr. Williams"), both of whom are board-certified physicians specializing in ophthalmology, Dahl believes that "gonioscopy is not a -- necessary to evaluate the overall health of every eye," Doc. 145-9, p. 9; in other words, a gonioscopy need not be performed as a matter of course. In his review of Dr. Jackson's gonioscopy records, Dr. Dahl found that some medical impossibilities surrounded the recorded findings. For example, the sample that Dr. Dahl reviewed should have contained at least some medical abnormalities, although Dr. Jackson recorded none. Dr. Dahl also found 10 specific incidents in the 25 trial records where medical tests were recorded and billed despite the patient never having visited Dr. Jackson's office on that date. This, of course, made Dr. Dahl question the medical record of those patients who had shown up for their appointments. Dr. Dahl also opined on the medical necessity of some of the patient trial records. He testified that each of the 12 gonioscopies performed on Patient 9 and each of the 9 gonioscopies performed on Patient 25 lacked medical necessity; therefore, it was inappropriate to bill Medicare for them.
The opinions of Dr. Kamenetzky and Dr. Williams stand in stark contrast to those of Dr. Dahl, as they do not take issue with the gonioscopy records at issue. This is perhaps most remarkable given that Relators retained Dr. Kamenetzky.
B. Extended Ophthalmoscopies
An ophthalmoscopy is "the examination of the interior of the eye with the ophthalmoscope [an instrument containing a perforated mirror and lenses used to examine the interior of the eye]." Dorland's Illustrated Medical Dictionary 1350 (31st ed. 2007). An extended ophthalmoscopy focuses on the posterior segment of the eye and allows a physician to monitor a patient for retinal tears and other abnormalities. The parties have stipulated that no regulation governed this procedure in Illinois during the relevant time period.
Cobin maintains that, like gonioscopies, Dr. Jackson "wrote [extended ophthalmoscopies] down all the time but we didn't do them." Doc. 159-7, p. 3. She estimated that Dr. Jackson performed a "true" extended ophthalmoscopy only about 5% of the time that he indicated such a procedure had been performed. With respect to the 25 trial patients, Cobin is confident that Dr. Jackson represented that he had performed a proper extended ophthalmoscopy on Patient 2 when he had in fact not done so. She was otherwise unable to identify extended ophthalmoscopies claimed but not performed on any of Dr. Jackson's patients.
The parties' expert witnesses have differing views of the propriety of Dr. Jackson's claims for extended ophthalmoscopy. Dr. Kamenetzky, who believes that the necessity of an extended ophthalmoscopy is a matter of medical judgment, found 22 of 25 of the trial extended ophthalmoscopies to be medically necessary. He primarily took issue with the other 3 procedures due to insufficient or absent medical drawings in patients' files. Of those 22, Dr. Dahl found only 3 to be medically necessary. This is largely due to his belief that an extended ophthalmoscopy should not be billed if a patient has already undergone the procedure and there is no evidence of change.
Patient 7 is of particular concern to Dr. Dahl. Despite the fact that Patient 7 did not experience significant vision changes, Dr. Jackson performed 10extended ophthalmoscopies on said patient over a two-year period. Dr. Dahl disputes the medical necessity of all of these procedures. Finally, like Dr. Kamenetzky, Dr. Dahl found many of Dr. Jackson's extended ophthalmoscopy drawings to be ...