Probation, Fine, and Financial Ruin: The Penalty for Not Committing a Crime

Last month a federal judge sentenced Rosa Martinez, a physician in Yakima, Washington, to a year's probation and a $1,000 fine for Medicare and Medicaid fraud. The fraud occurred when a physician's assistant in Martinez's practice mistakenly charged the government for her services at the physician's rate, which is allowed only when the supervising physician is present, which Martinez wasn't. She said she was unaware of the rule but accepted responsibility for the errors because they occurred on her watch. The overcharges totaled $22. No, that's not a typo. "Clearly," U.S. District Judge Fred Van Sickle said, "this is not any type of overt crime." Noting Martinez's dedication to her patients and her reputation for high-quality pro bono work, Van Sickle declined the prosecution's request to impose community service as part of her sentence, saying, "The kind of work you do is such that imposing some form of community service would not make sense."

This pathetic outcome is all that is left of a federal prosecution that threatened Martinez with up to 20 years in federal prison, portraying her as a taxpayer-bilking drug pusher. The case, launched three years ago by U.S. Attorney James A. McDevitt, stemmed from Martinez's willingness to treat people with histories of illegal drug use for pain, a practice that is not only legal but ethically required. In 2007 a jury acquitted her of prescribing narcotics outside the scope of medicine, failed to reach verdicts on related charges of unlawfully distributing narcotics, and convicted her on eight felony counts of health care fraud. After the trial, Judge Van Sickle dismissed the distribution charges and ordered a new trial on the fraud charges. The Yakima Herald-Republic reports that a medical billing expert hired by Martinez's lawyer "concluded that the convictions were based on misrepresentations by government auditors." According to the lawyer, "it gutted the prosecution's case," which is why McDevitt agreed to a plea bargain instead of retrying Martinez. As for Martinez, she wanted to keep fighting, but she "had run out of money" and assets, having "lost her home in the process of defending herself against the charges."

Keep this case in mind the next time you read about an alleged "pill mill" operator who faces a daunting list of charges that cast every aspect of his practice in a sinister light. More on drug control vs. pain control here.

[Thanks to the Pain Relief Network's Siobhan Renolds for the tip.]

Comments

[J sub D]

The War on Drugs Sick People and their physicians continues.

[Dello]

Luckily, this kind of blatant, rampant abuse of $22 of tax-payer money will all end once we have that perfectly streamlined national health care system in place.

[Ample Bosoms]

I take comfort in the knowledge that gun and ammo sales are through the roof.

[Xeones]

That'll teach 'er to try to heal people!

[FrBunny]

Keep this case in mind the next time you read about an alleged "pill mill"

I keep failing to find one of these mills, despite living in an "epidemic abuse" area.

WHEN IS MY TIME, LORD?!

[SugarFree]

Did you have UTCs? They are fairly easy with the pills. Which makes sense, because most of the doctors there went to Hollywood Upstairs Medical College.

[FrBunny]

Is that "urgent treatment centers"? Google (and thinkin') fails me.

[EscapedWestOfTheBigMuddy]

The proper term for those places is "Doc in the Box".

Succinct, descriptive, and instantly recognizable even to people who've never heard it before.

[SugarFree]

Sorry, yes. Urgent Treatment Centers. My profession is acronym and initials obsessed.

[FrBunny]

I've always thought universities were uniquely funny that way. "We'll be heading to the SAC from B&E unless you'd rather meet at K-2 and eat at B-1."

[The Phranc]

All I need is a N-5 for BINGO!

[Kent G. Budge]

I recently was diagnosed with diabetes at a UTC. The doctor was extremely competent and got me swiftly on the road to getting my blood glucose under control. Since I was basically peeing lemonade and bleeding nail polish by the time I went in, it's not a stretch to say he saved my life.

I understand that no institution is perfect, and my experiences at UTCs have not always been excellent. Still, it rubs me the wrong way to think of this particular doctor being spoken of as a "doc in the box" or as a graduate of Hollywood Upstairs Medical College.

I realize almost nothing in our medical care system is really on a free market basis, but UTCs come as close as anything. I'm surprised to see them knocked to offhandedly at an ostensibly libertarian site.

[michael]

Those guys at the doc in the box facilities get just as much grief from the managers as they do the patients. (I have been there) Too bad the doctors are no longer in control of your health care! It all is a sign of disrespect that we doctors can expect in the 21st century.

[JW]

Accidentally over billing the Federal Gummint: $22
Prosecuting a clerical error: $450,000
Abusing your power for a political agenda: Priceless.

For all the things you want to destroy, there's the grandstanding US Attorney's Office.

[John]

If you make everyone a criminal, you can throw anyone you don't like in jail. My only sincere hope is that someday Jim McDevitt will run afoul of the powers that be and himself be branded a criminal. If not, there is always my fervent faith that he will meet his just reward for a wasted life and career in hell.

[Scott]

Even if Jim McDevitt were to develop an addiction to Oxycontin or whatever and get his hands on some illegal prescriptions, I'm sure his pals in the prosecutor's office would quietly get the case dismissed and let McDevitt off the hook....a la Cindy McCain. I'm also sure the irony would be completely lost on him, a la drug crusader John McCain. Sorry to dash your sincere hopes onto the rocks of political reality, but there it is.

[John]

Rules are for little people you know. There is of course always hell.

[Bill]

Unfortunately, there isn't even that mythical place. Let's just hope there is something to the whole notion of karma.

[John]

Says you.

[McH2Os]

Of course, they can't let his reputation be sullied by drug use, he's got to be on the front line against people who use drugs!

[Andrew]

I take it that is an indirect nod to Anslinger and McCarthy.

[Ample Bosoms]

When Senate Finance Committee Chairman Max Baucus proposed taxing medical devices to raise $40 billion over the next 10 years for his health care plan, opponents started digging in and looking at what would be taxed. It turned out feminine products, like tampons, were classified as class I medical devices and thus, the "tampon tax" was born.
The backlash was quick and severe enough against the idea that the committee quickly drafted new language that would exempt those necessities from the tax, along with all other class I devices, like tongue depressors, and decided to only tax class II medical devices and higher that cost [more] than $100.
But, just wait for the revolt to start again because women will still pay a price under the new structure. Particularly new moms who want to use a powered breast pump to bottle milk for their babies. Those devices, labeled class II, typically retails for more than $100.

http://hotair.com/archives/200.....-pitfalls/

[Bronwyn]

Way to enrage this nursing (and pumping) mamma.

Maybe I can go shoot milk at Baucus, like that French dairy farmer did with his cow.

[SugarFree]

I think it's rent-seeking from the menstrual cup corporations.

[Bronwyn]

The Diva lobby?

[SugarFree]

Their PAC is very vocal. And full of chocolate.

[ic]

Who wants new moms anyway? More babies, more strains on the healthcare system.

If you can't afford breast pumps, don't breastfeed your babies.

[Wacky Hermit]

We CAN afford breast pumps; it's 40% taxes we can't afford.

[Warren]

mother fuckers

[Randy]

I read these type of stories and wonder if the job description for US Atty requires the applicant to be a self-righteous asshole.

[wylie]

In otherwords, and Ivy League degree in Law?

[anon]

Close. But it actually requires you to be a complete scum sucking self important politcal ass kiss, which is a bit different. Self rightous assholes at least have values. US Attorneys have no values beyond getting ahead and kissing ass of their political superiors.

[Long time reader]

This is why people shouldn't skip jury duty.

[LarryA]

You not skipping jury duty is why prosecutors can strike anyone who looks uppity.

[Episiarch]

This kind of shit boggles the mind, but it also makes me think that there are orders from higher up to pursue doctors (and have been for years), because these cases are pursued with WAY too much zeal to not have extra motivation.

[JEC]

In reality what they want to do is make and example of "abuse" and we all know, in light of what Acorn has done, that this abuse was WAY over the line. Geithner, Daischle,???? No fraud there of course.
Hypocritical Political Whores.

[Jeffersonian]

My sentiments exactly. Inadvertantly overcharge Medicare by $22 and the full weight of the Central State is brought to bear. Dodge hundreds of thousands in taxes for years and you're nominated (and confirmed) as SecTeas.

[Mike Dodson]

This sort of thing is just infuriating and makes one feel so impotent because there's not a thing that can be done to provide instant relief to the defendant.

It makes the government the biggest gang of bullies on the block. Certainly, nothing is done for the citizenry by pursuing a case like this.

[Paul]

McDevitt, stemmed from Martinez's willingness to treat people with histories of illegal drug use for pain, a practice that is not only legal but ethically required.

Now if we could just medicalize marijuana... You know, require a prescription for it and regulate it. Add a bunch of rules about who and when. You know, put institutions between you and your doctor.

[Colonel_Angus]

How can one commit fraud against a fraudulent system?

[KT]

It is a terrible time to be a physician. Why even try to help people?

[JB]

A government that dumb should not be allowed to exist.

[alan]

OT Heads up JS. There really does appear to have been pressure on the producers of House by the FDA to change the very premise of the character's medical condition.

The DEA has been writing letters to Fox complaining about House's "flagrant use and abuse of narcotics without consequence" for years now, and finally the network, writers, and producers all caved in to the government's demands... in the worst possible way.

[Eric]

This just in... the FBI is putting pressure on the producers of Showtime's "Dexter" to change the very premise of the character's need to butcher human beings and dump their body pieces in Miami Harbor.

[alan]

err, previous linking method, the standard method, does not appear to be working

http://www.dosenation.com/listing.php?id=6678

But a simplified means does.

[PTL]

Hey, it's better than Stalin shooting
tens of thousands of doctors.Under communism doctors are 2nd class citizens.
they don't produce things (that's the reason for so many female doctors in the
old USSR; they promoted the nurses). See, we have to be thankful for something.

[Flotsam]

If you like this result, you'll love it when the government has control over all health care.

[Jetsam]

A very similar thing happened to me. Fortunately, I was able to keep my practice, but it cost over $20000 to defend myself. I had to declare chapter 11, but I still have my house and my wife still loves me I hope.

[Buck O'Fama]

Too bad she's not a Democrat named "Rangel"; then she'd have a majority of the sh*thead congress circling the wagons around her.

[Mike K]

The DEA and other federal and state agencies often choose to prosecute these drug prescribing cases because it is too difficult to take on the real crooks. I served as an expert witness for the state for 30 years and found the AG's office, in spite of good intentions sometimes, were just incompetent in the medical care cases. Even an ALJ can understand drugs. I've been testifying where I had to spell the words for the ALJ in medical board cases. The deputy AG told me that he had been trying a case before the Accountancy Board the week before. As soon as they learn enough to know what they are doing, they quit and go into the med-mal business.

That's not to say there aren't some mills around but the ones I've seen prosecuted were naifs, like this doc sounds. The bad guys have the best lawyers.

[chchch]

Anyone believe our judicial system is innocent until proven guilty - maybe if you have endless financial resources. How many people accept felonies because they do not have the money for a defense against a prosecution that makes its reputation and political career by the notches it puts on its belt. McDevitt - what a scumbag!

[Nathan]

There needs to be some way of publicizing prosecutions like this, and I mean more than the noble efforts of Reason. Something a sizable percentage of voters are aware of. Only when such disgraceful behavior by prosecutors like McDevitt--McDevitt, McDevitt, James A. McDevitt, may every google search for "James A. McDevitt" lead here!--is punished at the polls, will it end.

By the way, I was mugged by a guy hopped up on painkillers just last week. Weren't you? Oh so dangerous to society, they are.

[eppie]

I have a neurological chronic pain disorder also I have a terminal illness and before I became ill I worked for a peer review organization (comprised of doctors) who had a contract with the federal government to oversee quality of care for Medicare and Medicaid patients. It was rare that any doctor ever received anything more than a slap on the hand but in hospitals it did seem to give everyone a bit more initiative to provide better care. The government did a way with the program for several reasons two of them were that HCFA had decided that they were going to extend their scope to physician's offices and the AMA had the political power to squash that idea and also reviewers were finding fewer quality of care issues (because they had cut back the amount of review) so HCFA decided that hospitals and physicians could police themselves and went to requiring a lot of paperwork to ensure that programs were in place.

Since I have been a patient in the health care system, I and thousands of other people have had the experience of not being able to find a doctor who could figure out what was wrong. But, at least there were doctors who would prescribe medication to help ease the pain, that does not mean getting rid of the pain.

Then the DEA decided as someone else mentioned that since they could not win their "real" drug war that they would prey on unsuspecting doctors who were just doing their job. They have the resources to make St. Theresa look like a slut.

So, now anyone who has any disorder that causes chronic pain is forced to seek out a pain management clinics. Many pain management clinics have used the fact that the DEA does go after doctors to make the patient go through many alternate expensive therapies (which they provide) as a requirement before they agree to give the patient any relief for their pain. Then because the PMC's are truly worried about DEA intervention, they force us to make strict pain contracts, pee in cups, and warnings that if the patient does anything to displease the physicians at the clinic, they will be discharged from care. Any patient who has been through this ordeal knows this is akin to receiving a number at a Nazi concentration camp, because once you are branded, it is difficult to find another pain management clinic to treat your pain. All pain clinics ask for notes from the previous physician.

Then there are also pressures that physicians and health care institutions receive as described above from politicians, etc.

So, this is the medical world in which patients live. Before anyone speaks too quickly that it does not affect them, they do not have too long to wait before their bodies or bodies of their loved ones start breaking down due to age and with that comes chronic pain.
Now, the government wants to go into the business of rationing health care. I see a very dismal future and sometimes I actually feel a bit of relief that I am leaving this world prematurely. But, I still have the inclination to want to help people with their suffering in what ever small way I can.

[tired dog]

Guilty; please pay the bailiff $22.00 fine and $10.00 court costs. You are free to go Dr.; Mr. Prosecutor I find you in contempt of common sense and sentence you to one year and one day in federal prison. Hand in your law license and any guns in your possession as well as your voter card.
Court is dismissed.

[tommy]

i agree people are fucking stupid

[tommy]

this is just showing how money hungry america has become danm the government is sewing over stupid shit all the time.they need to get off their asses for once and see what others do we make mistakes as do they. Wow all over 22 dollars i bet i have that in my coach

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