Patel, 67, was sentenced to 10 years in prison after a jury convicted him of 51 counts of healthcare fraud for performing heart procedures such as angioplasty and vascular stenting that prosecutors called unneeded. The lengthy prison term was upheld by the 5th U.S. Circuit Court of Appeals in New Orleans in August, even though Patel argued that clinical evidence supported his medical decisions involving 74 patients between 2001 and 2004.
Lawyers said cardiologists face high penalties in part because the procedures they perform tend to cost more than other things Medicare pays for, and sentencing decisions are often driven by the "loss amount" resulting from the fraud. Prosecutors said Patel's fraudulent Medicare billing totaled more than $3 million; Patel received $541,745 of what he billed.
"If you are a cardiologist doing expensive procedures, and you are doing something that the government regards as fraudulent, you absolutely could be looking at more time because the loss amount is higher," said Ken Julian, a partner with New York-based Manatt, Phelps and Phillips and a former healthcare prosecutor in the federal Central District of California.
"They also look at whether you are harming patients," he said. "If you are committing fraud and you are also exposing at patients to potential harm, you are driving the potential penalties into the stratosphere."
Dr. John McLean of Salisbury, Md., is scheduled to have oral arguments before the 4th U.S. Circuit Court of Appeals next month to appeal his conviction—and the resulting eight-year prison term—for Medicare fraud after prosecutors said he implanted more than 100 unnecessary stents in his patients between 2003 and 2006. He was ordered to pay back $579,000 in fraudulent charges to government healthcare programs.
McLean maintains his innocence in nearly every instance, saying he offered conflicting expert testimony to the government's claims in nearly every disputed procedure and that the evidence against him wasn't overwhelming. His lawyers are scheduled to argue to overturn the conviction on Feb. 1.
"The prosecution of Dr. McLean comes down to a debate between his treatment decisions regarding his patients and the latter-day judgments of the government's medical experts," his lawyers wrote (PDF). "This cannot be a constitutionally acceptable standard upon which to impose criminal liability."
Former federal prosecutor David Honig, an attorney with Indianapolis-based Hall Render Killian Heath and Lyman, said cardiology appears to have become an area of focus both for prosecutors and whistleblowers who bring private litigation on the government's behalf.
Honig also noted that cardiology offers a business model—namely, the widespread construction of costly and lucrative cardiac catheterization labs—that might make it more susceptible to fraud.
"In the last decade or so, cardiologists have built catheterization suites," Honig said. "There is a lot of money in cardiac catheterization, and a lot of need for catheterization. And if done right, it can save a lot of money." But, he continued: "Doctors are people. Pick at random 1,000 people, and I don't recommend that you give each of them your wallet and see if you get it back."
Virginia Gibson, a longtime former federal prosecutor who is in private practice at Hogan Lovells, said it's possible that federal courts are reacting not just to potential harm to patients and high dollar amounts in cardiology cases but also to the risk posed to the federal treasury from Medicare fraud.
"It could be one of those unquantifiable factors" in sentencing decisions, Gibson said. "People are worried about the continued viability of the program. … Having Medicare as the identified victim of a fraud scheme is not a guideline increase for sentences. But there could be a factor, that there is a concern for the vulnerability of the Medicare program itself to fraud."