October 23, 2003
By Paul Rosenzweig and Trent England
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 --
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
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
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
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
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
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
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?
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.
overcriminalized.com for more information on this
Distributed nationally on the Knight-Ridder Tribune wire.
At the rate things are going, it won't be long before the term "veteran doctor" becomes an oxymoron. And if that happens, we'll have only ourselves -- actually, our government -- to blame
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