Dr. Paul Michelson is an eye surgeon whom Phillips & Cohen attorneys represented in a False Claims Act lawsuit against his former employer, Scripps Clinic and Research Foundation, and a former colleague. The qui tam case alleged that they billed Medicare for unnecessary surgery and operations that were never performed. The clinic paid $355,000 in April 1988 to settle the qui tam case. A doctor at the clinic paid $250,000 in August 1990 to settle his portion of the lawsuit. Here is an edited version of Michelson’s story as told to a congressional subcommittee in 1990.
In 1977 I left a practice and affiliation with Harvard Medical School to move to southern California, where I took a position with a prestigious multi-specialty medical group.
In the mid-1980s, I discovered that a colleague was doing unnecessary surgery and billing fraudulently. This ophthalmologist was performing infrequent procedures with dramatic frequency. I felt compelled to investigate and reviewed some of his medical records.
I learned that he performed laser procedures to treat patients with secondary cataracts and glaucoma but billed Medicare for more expensive invasive surgical operations. Most troubling to me as a physician, however, was the discovery that this doctor had subjected his trusting, mostly elderly patients to dangerous treatments for glaucoma without having first attempted to treat them with simple safe eye drops and, in other instances, without having established a definite diagnosis.
Because of the risks involved, lasers are used to treat the common type of glaucoma only after maximum tolerated medical therapy has failed. Notwithstanding this standard of practice known to all, my sampling of records proved that this colleague had repeatedly violated these guidelines. In many instances, he had treated unsuspecting patients who did not even have glaucoma. In each case, the patients and Medicare were billed over $1,000.
My efforts to correct the situation internally failed. I was forced to consider alternatives. I knew, however, of well-publicized instances in which doctors and medical organizations had attempted to curtail unethical or illegal actions by errant colleagues, only to find themselves the objects of truly punitive legal retributions by the accused party. I was certain that I, too, would expose myself to a potentially ruinous defamation or restraint of trade case in the event the authorities failed to act conclusively and expeditiously.
Had I reported the doctor to authorities, I could then only hope that an investigator had the opportunity and the inclination to pursue my allegations, and that he or she would possess sufficient understanding of my specialty to appreciate the magnitude of the violations. To my knowledge, such investigations rarely, if ever, succeeded.
Fortunately, while searching for a solution, I read a newspaper article about the 1986 amendments to the federal False Claims Act. I learned that this law would guarantee me the right to my own legal counsel, would permit me to participate fully in the development of the evidence and the litigation, would require that the authorities promptly investigate any allegations and would provide court supervision of the progress.
Because the False Claims Act allowed me, with my attorney, to participate in the process, I did have enough confidence to proceed.
The case was filed against the doctor and his employer in April 1987. I spent hundreds of hours assisting government investigators and prosecutors interpreting innumerable medical records. In September 1987 the government joined the case. My attorneys, working hand-in-hand with the government, obtained a settlement from the employer in April 1988. I donated my share to charity.
The False Claims Act worked well to resolve this particular instance of unethical conduct and Medicare fraud. In return for an investment of my time and expertise, the qui tam provisions allowed me to stop abusive and dangerous medical practices and allowed the taxpayers to recover substantial funds.
My colleagues have been uniformly enthusiastic in their support of my actions. The overwhelming majority of physicians believe as I do. We bear the major responsibility for safeguarding the integrity of the medical profession. Only we, as peers, can properly and effectively monitor each other. The amended False Claims Act has given us a potent instrument with which to do so.