A whistle-blower lawsuit filed against Chicago’s Rush University Medical Center was recently unsealed, allowing the Chicago public a glimpse of the case facts. Goldberg, M.D. v. Rush University Medical Center, et al. was brought by orthopedic surgeon Robert Goldberg, M.D. against his employer, Rush University Medical Center, and fellow surgeons alleging that the orthopedic department routinely overbooked its operating rooms and violated Medicare billing rules.
Goldberg alleges that Rush’s orthopedic center operated as a business that emphasized quantity over quality, a claim that is supported by further allegations that the during 2004 and 2005 the orthopedic center regularly overbooked its operating rooms and relied heavily on its residents to perform surgeries. The assumption is that by overbooking these rooms the surgical center’s patients were at a heightened risk for surgical errors and potential medical malpractice.
According to Medicare billing rules teaching surgeons, like the six surgeons named in this lawsuit, are required to be present in the operating room during key portions of the procedures. The case was filed as a whistle-blower lawsuit because Medicare is a federal institution, and as such falls under the federal government’s umbrella. A whistle-blower claim is one in which the government has been victimized, such as by falsifying federal billing records.
Goldberg focuses on Medicare’s reimbursement rules regarding surgical procedures. These rules require that not only must the teaching physician be present for the critical parts of a procedure, but must also be “immediately available” to finish services at any point during the procedure. However, the lawsuit alleges that the defendants did not comply with these rules and in some instances were grossly non compliant.
For example, there are several instances cited alleging that a teaching surgeon was never physically present during whole procedures. Instead, the experienced surgeon would be performing his own surgeries in nearby rooms and was only monitoring the residents’ operations via a video feed. There are additional allegations that the residents and attending physicians falsified medical records in an attempt to hide these facts.
In response, defendants’ attorneys are denying that the orthopedic center ever scheduled any such overlapping surgeries and are claiming that the video system was used to determine when a room was ready for a patient or occasionally for teaching residents. The defense is denying that the video system was ever used to manage concurrent surgeries and is stating that the health and safety of all its patients was never threatened or at risk for any surgical errors.
Both sides seem to be focusing on whether the surgeons could have physically performed all of the booked procedures and still be complaint with Medicare billing guidelines. While the plaintiffs are saying that there was no possible way for the experienced surgeons to be physically present during the critical portions of all the scheduled procedures, the defense is saying that it was possible and that they were present at all times required.
As is typical in Illinois medical malpractice cases, or in the present case, the burden of proving one’s case involves patching the pieces of information found in the medical records. In these instances the attorneys use the information, such as documents itemizing the number of surgeries performed each day, operating room schedules, or surgical reports, in order to reconstruct what happened. The jury is then responsible for analyzing the opposing viewpoints and determining which one is closer to the truth.
Melissa Harris. Rush, 6 doctors named in whistle-blower suit: Surgeon, former hospital executive say orthopedic center fraudulently billed Medicare for surgeries for which they were not present. Chicago Tribune. July 8, 2010.
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