Government upcoding case against doctor is frivolous; $300,000 given

by • November 1, 2007 • UncategorizedComments Off on Government upcoding case against doctor is frivolous; $300,000 given1454

• The Gist: As in all cases of upcoding, preparation and fact-finding are essential. Being an “outlier” on the coding curve may not impart guilt.

© 2007 The Medical-Legal News

In an article in August in the American Medical News, a doctor successfully defended a government-brought upcoding suit. According to the article, it was a rare defense victory.

The doctor, Mark Capener of Idaho Falls, Idaho, had been accused by the Justice Department of billing for endoscopic sinus surgeries that were either unnecessary or never performed, and for upcoding. The doctor won $300,000, though he had spent over $1 million to defend himself, according to the account.

The government’s case broke down because its lead expert witness had been refuted by another expert witness — one that the government had interviewed prior to the one it put on the stand.

In court documents, U.S. District Judge Robert C. Jones scathingly implied the government put forth a false theory.

While Capener was in fact an outlier with respect to his CPT code billing, his defense expert clearly showed that his surgeries were necessary. According to the report, Capener sued under the Hyde Amendment, which allows a frivolously-wronged defendant in a federal suit to recoup court costs. 

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