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Chapter 5

Criminal Aspects of Health Care

LEARNING OBJECTIVES

Explain what criminal law is, the classification of crimes, and its purpose.
Describe the criminal procedure process from arrest through trial.
Describe several of the more common crimes that occur in the healthcare setting.

Criminal law

Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses.
What is the purpose of criminal law?

Purpose of Criminal Law

Maintain Public Order & Safety
Protect Individuals
Use Punishment as a Deterrent
Provide for Criminal Rehabilitation
What are the definitions of a crime, misdemeanor & felony?

Definitions

Crime – social harm defined & made punishable by law.
Misdemeanor – offense punishable by less than 1 year in jail and/or a fine.
Felony – imprisonment in a state or federal prison for more than a year.
What is an arraignment?

Arraignment

Formal reading of the accusatory instrument
a generic term that describes a variety of documents, each of which accuses a defendant of an offense
includes the setting of bail
What is the purpose of a conference with the defendant and prosecutor?

Conference

Meeting for purposes of deliberation
Plea bargaining time
Commences with the goal of an agreed-upon disposition
If no disposition can be reached, a case may be assigned to a trial court.
Describe the process of conducting a criminal trial.

Criminal Trial – I

Jury selection
Opening statements
Presentation of witnesses & evidence
Standard of proof must be beyond a reasonable doubt.
Summations

Criminal Trial – II

Instructions to the jury by the judge
Jury deliberations
Verdict
must be unanimous
Opportunity for appeal
What does the False Claims Act of 1986 prohibit?

False Claims Act of 1986

Knowingly presenting a false claim for payment.
making a false record to get a false claim paid.
conspiring to defraud the government.
making a false record to avoid an obligation to pay or transmit property to the government.

Ethics in Patient Referral Act

Prohibits physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory.
Requires Medicare providers to report the names & provider numbers of all physicians or their immediate relatives with ownership interests in a provider entity.

Health Care Fraud: HIPAA

Provides criminal & civil enforcement tools & funding to fight health care fraud.
HIPAA requires U.S. AG & Secretary of DHHS acting through OIG to establish coordinated national Health Care Fraud & Abuse Control Program.
Program provides coordinated national framework for federal, state, & local law enforcement agencies; private sector; & public to fight health care fraud.

Kickbacks

Laboratory
Architectural Contract

Health Care Fraud: Text Cases

Defrauding Medicare and Medicaid
False Medicaid Claims
Pharmacist Submits False Drug Claims
Inflating Insurance Claims
Falsiﬁcation of Records

Falsification of Records

Falsification of medical & business records is grounds for criminal prosecution.
Anyone who suffers damage as a result of falsification of records may claim civil liability.
The provider could lose Medicare & Medicaid funding.

Misuse and Theft of Drugs

Internet Pharmacy
Failure to review patient prescriptions prior to dispensing.
Fraudulent billing.
Transfer of funds to offshore account.

Physicians: Victims of Fraud
Prevention

Familiarize themselves with patient-billing & recordkeeping practices.
Avoid having one individual in charge of billing & collection procedures.
Arrange for an annual audit of office procedures & records by an outside auditor.

Patient Abuse

Patient abuse is the mistreatment or neglect of individuals who are under the care of a health care organization.
Describe the signs of resident abuse the surveyors look for.

Forms of Abuse

Physical
Psychological
Medical
Financial

Abuse Cases - I

Criminal Negligence
Reckless disregard for the safety of others.
Willful indifference to an injury that could follow an act.
Neglect of Residents
Abuse & Revocation of License
Abusive Search
Physical Abuse

CRIMINAL NEGLIGENCE

Neglect of Residents
Abuse and Revocation of License
Abusive Search
Medication Violations and Resident Abuse
Assisted Living Facilities

Murder

Unusual Number of Deaths
Nurse Sentenced for Diabolical Acts
Fatal Injection of Pavulon
Fatal Injection of Lidocaine

Petty Theft

Cost Millions Annually
Patient Valuables
Staff Valuables
Supplies
Medical Equipment

Case: Sexual Assault

An action was filed against a nursing facility after the plaintiff's mother was sexually assaulted by a dementia patient.
There was testimony that the facility was properly staffed.
There was testimony that the resident suffered no physical injury & she was not aware of the assault.
What was the Court’s decision?

Court Decision

The court found that the facility had not breached its duty of care.

Review Questions – I

What are the objectives of criminal law?

Describe the difference between a misdemeanor & a felony. Give an example of each.

List the processes of a criminal trial.

Why has health care fraud been so costly?

Based on cases in the chapter, discuss why physicians historically have been reluctant to remove a patient's life-support systems.

Discuss why you believe patients are sometimes reluctant to complain about their health care.