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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

January 22, 2002

BY HAND DELIVERY

The Honorable John Ashcroft
United States Attorney General
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, DC 20530

Dear Attorney General Ashcroft:

We supported your nomination and your War on Terrorism. But what we are seeing is a War on law-abiding physicians. AAPS, an organization founded in 1943, which represents thousands of physicians nationwide, calls on you to address these injustices.

The unjustified prosecution of honest, hard-working physicians has continued unabated by your Department. Some of these abuses began under your predecessor, but still constitute an ongoing agony for the individuals involved. We have heard that there is even a Department training video urging prosecutors to exploit medical coding ambiguities. Video or not, the following prosecutorial abuses are an outrage.

Dr. Robert Mitrione of Springfield, Illinois, is being threatened with 27 months in jail over a harmless coding dispute. On September 12, 2001, the prosecutor, in a highly inflammatory summary, associated Dr. Mitrione, in the jurors' minds, with the terrorist attacks. That, and a deceptive prosecution exhibit, destroyed one of the few psychiatrists willing to attend Medicaid recipients. The alleged crime: "substitute billing." His office acted in good faith on the advice of a Medicaid representative, since deceased, and in a manner quite consistent with the actual wording on the claims forms. Will Dr. Mitrione go to jail for something that is not even a crime, let alone a crime having the necessary clarity and notice? More details on this case are found in the enclosed Legal Supplement to AAPS News.

Dr. Owen McCarthy of Tampa, Florida, relied on advice from a Medicare billing consultant, and has been harassed by your Department ever since. A disgruntled colleague wired

himself to entrap Dr. McCarthy, in a misguided attempt to profit from a qui tam action. Instead, Dr. McCarthy said on tape that if the codings are somehow incorrect, then he'll correct them. But the facts do not seem to matter anymore. For three years this prominent physician has been harangued by the qui tam profiteer and overzealous prosecutors, with baseless allegations repeatedly sent to the local media. While the Tampa office of the Department was chasing headlines by threatening physicians, driving one (Dr. Narendrasinh Jadeja) to suicide, the 9/11 terrorist pilots were training for their attack at the nearby Venice flight school. The observed bizarre conduct of the terrorists was apparently of less interest to the Department than locking up honest physicians. Meanwhile, a court has since ordered Medicare to refund monies to Dr. McCarthy and others there, but the harassment continues.

A representative of the GAO told us at our recent annual meeting that the advice given by representatives of Medicare carriers is erroneous 85% of the time. But prosecutors are exploiting these ambiguities and errors-despite promises repeatedly made by high officials such as D. McCarty Thornton.

Another victim of the overzealous Central Illinois office is Dr. Sergius Rinaldi, a 66-year-old dentist, who was imprisoned for four months together with street thugs and other predatory young criminals-for failure to produce patient sign-in sheets, probably due to simple forgetfulness about their location. Instead of pursuing terrorists, the FBI went as far away as Colorado, where Dr. Rinaldi's son resides, searching for the dental records of Medicaid recipients.

Then there is the case of Dr. George Krizek, a Washington, DC, psychiatrist, now elderly and in poor health. Dr. and Mrs. Krizek might be thrown out onto the street by U.S. marshals on January 25 due to inability to pay a judgment of more than $300,000. Dr. Krizek's career of providing dedicated, cost-effective service to severely disturbed psychiatric patients on Medicaid was destroyed nearly a decade ago by the Department of Justice. He has received no income from practicing his profession since 1994. He and his wife live on rents from properties that she maintains through her own hard labor; U.S. marshals claim they will decide just what they will take away from her.

Unable to find a scrap of evidence to support their effort to charge him criminally, U.S. attorneys wasted enormous resources in civil proceedings over what amounted to coding disputes. It is very likely that Dr. Krizek was actually underpaid for his work. The whole travesty is brilliantly exposed in the recent appeals briefs posted under "prosecutions" on our web site, www.aapsonline.org, along with Mrs. Krizek's Congressional testimony.

You have it in your power to stop the enforcement of a highly punitive, unjust judgment, and to stop future abuses. You could prove Mrs. Krizek wrong in saying that she was better off in Czechoslovakia under Communist rule; she was at least able to talk to a reasonable human being when a problem arose there.

Next is the case of Dr. Charles Sell, a Missouri dentist who has been incarcerated in Federal prison in Springfield, Missouri, for more than 4.5 years without a trial. The conditions of his incarceration are apparently quite brutal, including 1.5 years in solitary confinement. He has never been tried, and a judge has declared him to be not dangerous, but nevertheless your Department is vigorously pursuing an attempt to forcibly drug him. He believes that he may have been targeted in the first place because he spoke out against Federal Government activities at Waco. (He was called there as a member of the Army Reserve because his skills as a forensic dentist were anticipated, though the deadly fire had not yet occurred.) Even the St. Louis Post-Dispatch, which would hardly be supportive of Dr. Sell's opinions, is concerned about this situation, and we understand that Time magazine may soon publish a story. In addition, ABC and NBC News are now investigating the situation.

I could give you many other examples of instances in which millions of taxpayer dollars are being spent to prosecute physicians who at worst committed an inadvertent violation of one of the 132,000 pages of Medicare regulations. They never had any intention of harming anyone or of collecting one dime to which they were not entitled. Essentially the process depends almost entirely on the integrity of the prosecutors. Yet the prosecutors have tremendous financial and career incentives to bring convictions, without regard to truth or justice. They are doing that in these cases with impunity.

AAPS is deeply disappointed by these ongoing abuses, and the injustices they cause. Behavior such as "prosecutors lying, hiding evidence, distorting the facts, engaging in cover ups, paying for perjury, and setting up innocent people to win indictments, guilty pleas, and convictions"-as described in a 1998 series in the Pittsburgh Post-Gazette by Bill Moushey-cannot be tolerated in a free society.

What will you do to rein in prosecutors who place their careers ahead of justice? AAPS thought that the practice of making scapegoats out of honest physicians would end under your tenure. Will it?

I would be happy to provide any additional details and I await a substantive response.

Sincerely yours,

Jane M. Orient, M.D.,
Executive Director