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October 23, 2003

The Doctor Won't See You Now

By and

At the rate things are going, it won't be long before the term "veteran doctor" becomes an oxymoron, judging from a report by the American Association of Physicians and Surgeons. And if that happens, we'll have only ourselves -- actually, our government -- to blame.

The report revealed that two-thirds of the doctors in America are thinking of retiring early. Most want out, it said, because of "increased government interference" and "increased hassles with Medicare."

George and Blanka Krizek understand completely.

The Krizeks survived World War II and the Nazi occupation in their native Czechoslovakia. They endured a decade under Soviet rule. After a daring escape to the West, they adopted America -- the land of opportunity -- as their new home.

Trained in psychiatry at prestigious universities in Prague and Vienna, Dr. Krizek underwent further study at New York's Beth Israel Hospital, then, in the early 1970s, moved his family to Washington, D.C., and set up a practice.

Many of Dr. Krizek's patients were elderly, poor or homeless. Not surprisingly, he routinely billed Medicare or Medicaid for reimbursement. Mrs. Krizek kept overhead costs low by serving as her husband's bookkeeper. Although English is her second language, Mrs. Krizek diligently waded through thousands of pages of government regulations and confusing forms for the government programs.

Then, on Dec. 12, 1989, an unidentified telephone caller asked Mrs. Krizek if she would be home to receive a Christmas package. No package arrived, but three federal agents did. They said they were "from Medicaid" and "had some questions." For three hours, they yelled at and berated Mrs. Krizek and even ridiculed her accent. They accused her of defrauding the government with corrupt billing schemes.

Three years later, on Christmas Eve, a certified letter arrived that informed the Krizeks the U.S. Attorney's Office was prepared to file a False Claims Act lawsuit against them for an alleged 8,002 fraudulent Medicare and Medicaid reimbursements. The suit could be avoided, of course, "in exchange for an appropriate cash settlement."

The prosecutor had chosen carefully. The False Claims Act is a civil law -- which means the government must prove only that "a preponderance of evidence" supports its claims, rather than the "beyond a reasonable doubt" standard for criminal law. But its sanctions are so severe that it has become, in essence, a criminal law.

Enacted in 1863, the False Claims Act was the Lincoln administration's attempt to rein in rampant fraud by defense contractors during the Civil War. But in 1986, Congress increased the law's punitive fines and removed the requirement of intent to defraud the government. As a result, doctors can be forced to pay a $10,000 fine plus three times the real damages for filing any reimbursement form that contains a mistake.

When the Krizeks refused to settle and admit guilt, the government sued them for $81 million. After a three-week trial, the district court eviscerated the government's two primary arguments, called its theories "arbitrary and perverse" and labeled its witnesses unpersuasive. However, the court allowed the government to conduct an unprecedented fishing expedition into six years of the Krizeks' reimbursement records and required them to prove that any billing that indicated the doctor had worked more than nine hours in a day were not fraudulent.

Most health-care reimbursement codes do not specify time dimensions. The court, in essence, invented regulations by which to judge Dr. and Mrs. Krizek. It later held that while the Krizeks never intended to defraud the government, they had violated the False Claims Act in a handful of instances -- all because Dr. Krizek sometimes worked long hours.

The Krizeks' case illustrates the grave danger of blurring the line between criminal and civil law. While the government suggested the Krizeks were guilty of criminal acts, in fact, all it had were allegations -- questions, really -- relating to their bookkeeping.

Nevertheless, the Krizeks were forced to pay fines totaling nearly $250,000. And for a dozen years thereafter, the government used the False Claims Act to conduct a vendetta against them.

In the end, they not only destroyed Dr. Krizek's health and his livelihood -- he contracted cancer and had to shut down his practice, and he and Mrs. Krizek now live with their daughter -- they deprived the most needy residents of the District of Columbia of a skilled and dedicated doctor.

Can anyone claim it was worth it?

Paul Rosenzweig is a senior legal research fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and adjunct professor of law at George Mason University. Trent England is a Legal Policy Analyst for The Heritage Foundation.

See overcriminalized.com for more information on this topic.

Distributed nationally on the Knight-Ridder Tribune wire.

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