Moving Beyond Simple Conflict of Interest

¶ … Moving Beyond Simple Conflict of Interest

Question No. 1: "How do criminal and civil law differ?"

In criminal proceedings, defendants face monetary penalties as well as the loss of their freedom through incarceration and even their lives, in capital cases, if they are convicted. By very sharp contrast, civil cases provide for restitution only. According to Findlaw (2013), "Crimes are generally offenses against the state, and are accordingly prosecuted by the state. Civil cases on the other hand, are typically disputes between individuals regarding the legal duties and responsibilities they owe one another" (The differences between a criminal case and a civil case, 2013, para. 2). Some of the fundamental differences between criminal and civil cases include the following:

Criminal cases are regarded as being offenses against the state, or society as a whole which means that even though one person might murder another person, murder itself is considered an offense to everyone in society. As a result, crimes against the state are prosecuted by the state, and the prosecutor (not the victim) files the case in court as a representative of the state. If it were a civil case, then the wronged party would file the case.

Criminal offenses and civil offenses are generally different in terms of their punishment. Criminal cases will have jail time as a potential punishment, whereas civil cases generally only result in monetary damages or orders to do or not do something; however, a criminal case may involve both jail time and monetary punishments in the form of fines.

The standard of proof is also very different in a criminal case vs. A civil case. Crimes must generally be proved "beyond a reasonable doubt"; by contrast, civil cases are proved by lower standards of proof such as "the preponderance of the evidence" (which essentially means that it was more likely than not that something occurred in a certain way). The difference in standards exists because civil liability is considered less blameworthy and because the punishments are less severe.

Criminal cases almost always allow for a trial by jury. Civil cases do allow juries in some instances, but many civil cases will be decided by a judge.

Defendants in criminal cases are entitled to an attorney, and if they cannot afford one, the state must provide an attorney. A defendant in a civil case is not given an attorney and must pay for one, or else defend him or herself.

The protections afforded to defendants under criminal law are considerable (such as the protection against illegal searches and seizures under the 4th Amendment). Many of these well-known protections are not available to a defendant in a civil case (The differences between a criminal case and a civil case, 2013, para. 3).

In the United States v. Greber (1985) case, the defendant was subject to criminal charges because of the alleged misrepresentation of material facts contained on the Medicare reimbursement forms submitted by his company, Cardio-Med, as well as other fraudulent practices that carried criminal penalties. In addition, the U.S. mails were used to perpetrate these activities, which was also a criminal offense pursuant to the U.S. Code. For instance, counts 5 to 11 of the indictment involved charges of mail fraud; in addition, the indictment reported that the defendant caused Cardio-Med to bill Medicare for monitorings that were not medically necessary. In addition, the defendant was charged with mail fraud in counts 1 to 4 because he used the mail to bill for hospital visits that were never made. Although the defendant was subject to criminal proceedings for these offenses, he would also be liable for various civil penalties if patients and vendors pursued lawsuits in civil courts of competent jurisdiction.

Question No. 2: "In what ways did this case differ from simple joint venturing?"

The analysis of the Anti-Kickback Statute by Hill and Horton (2012) provides several examples of how the Greber case is both similar and different from simple joint venturing, including those set forth in Table 1 below.

Table 1

Differences and Similarities between Greber and Simple Joint Venturing

Difference/Similarity

Description

The statute applies to both cash and non-cash remuneration

Obviously, a hospital that pays a physician $50 for each Medicare patient admitted has violated the statute (as has the physician for accepting the money); however, a hospital that provides an opportunity to a physician to invest in a joint venture on below-market terms or provides space or equipment to the joint venture at below-market rent has similarly violated the statute even though no money has changed hands, if the requisite intent to induce referrals is present.

The statute applies even where there is no actual government reimbursement.

The opportunity to invest in a "private-pay only" joint venture may, in some circumstances, constitute an inducement to physicians to refer patients to the joint venture partner for other services covered by governmental programs.

In general, violation of the statute is a two-way street

While it is theoretically possible for one person to violate the statute by offering a kickback to (or soliciting a kickback from) another person even where the other person refuses to play ball, one does not commonly see prosecutions based on that fact situation.

Where the requisite bad intent exists, an arrangement may violate the statute even where there are also legitimate purposes behind the arrangement.

Many claimed Anti-Kickback Statute violations arise from arrangements that may serve legitimate, socially useful purposes, such as providing healthcare services that might not otherwise be available in the local community; however, there are cases that hold that the statute is violated if even one purpose of an arrangement is to induce referrals or otherwise to engage in activities violative of the statute, even though there are other good purposes present. The "one purpose" test and its variations makes it important to note that an arrangement is not saved from violating the statute simply because the parties can articulate hypothetical (or even real) purposes behind the arrangement that do not violate the statute.

The statute is a criminal statute

While the government's enforcement arsenal under the Anti-

Kickback Statute includes civil and administrative sanctions, it should always be borne in mind that violation of the statute is a felony.

Source: Adapted from Hill & Horton, 2012

Question No. 3: "Did the physicians dishonor their fiduciary relationship with their patients? If so, how?