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Published 2/1/2011
David H. Sohn, JD, MD

Compliance liability may be a greater risk than medical malpractice

Most orthopaedic surgeons are well aware of the risks of medical malpractice. But many of those same physicians view compliance regulations as more of a nuisance or hassle than a real concern. They may view hospital compliance officers as trying to make a demanding profession even more onerous and will put off taking mandatory online training modules.

Potential compliance violations, however, abound in the orthopaedic surgeon’s world, often in innocuous situations, as the following scenarios indicate.

A “comprehensive” visit?
In a busy clinic, an orthopaedic surgeon sees a patient with an unusually complicated history. The patient has numerous musculoskeletal complaints and conditions, and the surgeon must sort through several previous radiographic studies and operative reports. Due to the complexity of the conditions and the time spent on the patient, the surgeon bills the visit as a “comprehensive” visit.

This would be a potential Medicare fraud claim because the surgeon has only examined the musculoskeletal system. Without a review of other systems such as the cardiac or respiratory systems, the surgeon has not performed a “comprehensive” exam under Medicare guidelines. Though the surgeon did not mean to overbill, he or she is potentially liable for fraud.

A physician reviewing his billing notes that he has mistakenly been overpaid on one of his Medicare accounts. An overpayment by any payer is an unusual occurrence that automatically should flag the physician’s notice.

The physician may not realize, however, that the recent healthcare reform legislation not only requires repayment of overpaid Medicare or Medicaid claims to the federal government, but also requires that repayment be made within 60 days or the physician risks violating the expanded False Claims Act.

Office space
A physician operates out of multiple hospitals. One hospital offers her a sweetheart deal on an office lease because one of its surgeons is retiring. If the surgeon accepts the deal, she could be construed as receiving something of value (low rent) as an inducement to bring more business to the hospital. If some of that business happens to be Medicare or Medicaid patients, both the physician and the hospital have potentially violated federal anti-kickback laws.

Product demonstrations
An orthopaedic device company is putting on a conference and hopes to show some surgical demonstrations using their products. The company identifies several high volume surgeons in the area and offers to pay them consulting fees for their time in showing how they use the products by performing cadaver surgery. The device company is potentially liable for improper relations under the Sunshine Act.

Anticompetitive behavior
After hearing that an insurance company plans to decrease physician reimbursements, two surgeons in a break room openly grumble, “We should just stop seeing patients with that insurance.” Someone overhears the conversation and reports the surgeons to the Department of Justice (DOJ) for violating the Sherman Antitrust Act.

In other words, intent no longer matters. Among other things, the recent healthcare reforms have expanded compliance liability, and the government is no longer required to prove intent as part of a fraud claim in many cases. Whistle-blowers can bring claims based solely on public proceedings without any primary evidence.

Implications for orthopaedists
It very well may be that compliance violations are graver and more serious than medical liability. For example, liability for compliance violations is not covered by insurance. Monetary penalties come straight from the physician’s pocket. More concerning is the fact that compliance violations, intended or not, can result in a loss of livelihood. Violations can lead to public censure, loss of licensure or insurance participation, and the inability to practice medicine.

Since 2008, scrutiny of physicians has increased, particularly with regard to compliance violations, which has led to threats of both civil and criminal punishment.

The recent prosecution of some orthopaedic surgeons and the Idaho Orthopaedic Society is one example. Unhappy with the prices set by the Idaho Industrial Commission, a group of orthopaedic surgeons refused to see patients covered by workers’ compensation. The case was prosecuted by the DOJ’s Antitrust Division, which can and did threaten the surgeons with criminal punishment of jail time. Although the surgeons admitted to no criminal activity, Antitrust Chief Christine Varner, further linked this outcome with private insurance contracts.

Attempts to rein in healthcare costs have placed a priority on healthcare fraud prosecutions. In 2010, Kirk Ogrosky, then DOJ deputy chief of healthcare fraud, addressed the AAOS Annual Meeting and drew attention to the focus on fraud: “I’ve been investigating healthcare fraud for 15 years, but within the last year, healthcare fraud has been raised to Cabinet-level attention.”

The recent massive expansion of federal government healthcare may also exacerbate the problem. If the overhaul fails to contain costs or escalates costs significantly, physicians may become political scapegoats, particularly if high fraud prosecution numbers are used to support such claims.

Next steps to take
What then can orthopaedic surgeons do? The first step is to invest in compliance resources. Consulting a healthcare attorney is an obvious although likely expensive option. Other options, however, are available at little to no cost. Most state medical and professional societies—including the American Medical Association and the AAOS—have compliance resources available to members. Almost all hospitals already have compliance officers; invest the time to meet with them and regard them as resources, not nagging hindrances.

Second, be careful what you say and to whom you say it. The fact that the DOJ has taken over antitrust and healthcare fraud litigations means that wiretaps can be obtained for phones and personal computers. Even casual banter or griping around the water cooler may be fair game. A proposed DOJ order restrains physicians from “communicating with any competing physician … about the actual or possible view, intention, or position” regarding terms, fees, or duration of payer contracts. Any statements that could be construed as a desire to collaboratively opt out of a contract, private or public, may be prosecuted.

Third, be proactive. Support advocacy efforts through your local, state, or national professional organizations. Participate in disclosure programs, such as the AAOS Orthopaedic Disclosure Program. Share your thoughts on how to increase patient access to care, decrease the cost of care, and improve the quality of care with your colleagues, hospital administrators, and government representatives. The AAOS has “talking points” you can use; see the online version of this article for specific links.

Did you know?

  • “Off label use” may be the target of whistle-blower allegations under the False Claims Act.
  • Compliance violations are not covered under medical liability insurance.

David H. Sohn, MD, JD
Dr. Sohn is assistant professor in the department of orthopaedic surgery, division of sports medicine, at the University of Toledo Medical Center. A 2008 AAOS Washington Health Policy Fellow, he specializes in sports medicine and shoulder surgery. He can be reached at