Misstatement in Operative Report Not a Crime, AAPS Tells Court
Misstatement in Operative Report Not a Crime, AAPS Tells Court

In a motion for leave to file an amicus brief, the Association of American Physicians and Surgeons tells the Court that the criminalization of language used in medical reports will have a profoundly chilling effect on the practice of medicine.

In November, 2012, John Natale, M.D., of Chicago, a cardiothoracic and vascular surgeon, went to federal prison on charges related to difficult, life-saving operations on several patients performed nearly 10 years ago. The patients survived and did well despite an expected mortality of 90 percent.

Natale was accused of Medicare fraud because of billing under an AMA procedure (CPT) code allegedly representing a more complex operation than the one he did. He was acquitted by the jury on all counts related to fraud.

He was, however, convicted on two counts of making “false statements,” and Judge Rebecca Pallmeyer decided a prison sentence was needed to send a message to all physicians about the importance of accurate reporting for the financial stability of the Medicare program.

Natale routinely worked from 5:30 a.m. until late at night, and habitually was behind in dictating his operative reports. He incorrectly stated that he had used a bifurcation or Y-graft in repairing an abdominal aortic aneurysm, instead of the straight tube graft actually used. This made no difference in the billing, and there was no evidence that Natale “knowingly” and “willfully” made a false statement in order to violate the law.

The government refused consent for AAPS to file the brief; hence the need for a motion to the Court to accept it.

AAPS argues that the trial court erred in expanding the statute far beyond its legitimate scope, sweeping in misstatements “lacking materiality, lacking fraud, and lacking any proof of willfulness.” In other words, there was no proof of a mens rea, or criminal intent.

“False statements can be found in any voluminous body of work, but that does not make them federal crimes.”

It is unprecedented to hold medically imprecise, disfavored, or even false statements in an operative report to be a crime in the absence of billing fraud, AAPS notes in the brief. To do so “is a breathtaking expansion in government interference with medical practice, and the resultant chilling effect is detrimental both to efficiency and to the ability of physicians to speak freely about their own work.”

AAPS asks the Court of Appeals for the Seventh Circuit to reverse the conviction.

The Association of American Physicians and Surgeons (AAPS) is a national organization representing physicians in all specialties, founded in 1943.

Click here to download amicus brief in PDF format

Click here to download motion to file in PDF format