United States v. Greber

760 F.2d 68 (3rd Cir. 1985)

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Nature of the Case

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Facts

D is an osteopathic physician who is board-certified in cardiology. D was the president of Cardio-Med, Inc. Cardio provides physicians with diagnostic services, one of which uses a Holter monitor. Cardio-Med billed Medicare for the monitor service and, when payment was received, forwarded a portion to the referring physician. D justified this payment back to the physician claiming that the physicians had provided “interpretation fees” for the doctors' initial consultation services, as well as for explaining the test results to the patients. The evidence showed that physicians received 'interpretation fees' even though D had actually evaluated the monitoring data. The fixed percentage paid to the referring physician was more than Medicare allowed for such services. These fees were 40 percent of the Medicare payment. P charged that the fees paid were more than allowed by Medicare. In a civil proceeding, D had testified that “if a doctor didn’t get his consulting fee, he wouldn’t be using our service.” D told physicians at a hospital that the Board of Censors of the Philadelphia County Medical Society had said the referral fee was legitimate if the physician shared the responsibility for the report. This was false. P charged D with having tendered remuneration or kickbacks to the referring physicians in violation of 42 U.S.C. § 1395nn(b)(2)(B) (1982). D was also charged with making false statements to Medicare, and mail fraud. The court instructed the jury that P had to prove that D knowingly and willfully acted with the intent to induce the physicians to use Cardio-Med’s services. The court further instructed that if the referring physician interpreted the results, D would still be guilty if one of the purposes of the fee was to induce ordering the services from D. D was found guilty and appealed.