Medicare fraud investigator details evidence against surgeons.

Byline: Tim Christie The Register-Guard

For the heart surgeons from Cardiovascular Surgical Associates, Oct. 17, 2002, was another typically busy morning, with three bypass surgeries in three operating rooms at Sacred Heart Medical Center in Eugene.

In OR 16, Dr. David Duke started his coronary artery bypass grafting, known as CABG, at 8:20 a.m. His colleague, Dr. Richard Hicks, was listed as the assistant surgeon on the case, according to federal investigators' records.

Over in OR 15, another member of the practice, Dr. Stanley Baldwin started a bypass surgery at 8:24 a.m. Dr. Hicks was listed as the assistant on the case, the records show.

And in OR 3, Dr. Rob Burnett was the primary surgeon on yet another CABG, starting at 8:25 a.m. Assisting on the case: Dr. Hicks.

How Hicks was able to assist three different surgeries going on simultaneously in three different operating rooms is unclear. But that practice was repeated on other days, with different combinations of doctors listed as primary and assistant surgeons on cases going on at the same time, the federal records show.

This pattern of overlapping, intertwined surgeons and their assistants appears to be central to the federal government's long-running investigation into four Eugene heart surgeons: Drs. Duke, Baldwin, Hicks, who is now retired, and Warren Glover. Dr. Burnett left the practice in 2003 to work in Idaho and has not been implicated in the case.

No charges have been filed in the case, a civil and criminal probe that's been going on since August 2003. But in court records, investigators allege the doctors submitted fraudulent billing claims to the federal Medicare and Medicaid programs and, as evidence, point to records showing the overlapping surgeries.

Lawrence Matasar, a Portland attorney representing Duke, said heart surgery is a lengthy, complex procedure, and no one has alleged any problems with the care these doctors provided.

"I think everyone agrees these are great surgeons," he said. "Medicare regulations are exceedingly complex and these doctors did everything they could to comply with them. We don't believe they did anything wrong."

Donald Diment, a Eugene attorney representing Glover, said the surgery times listed on paper can be misleading, and that it doesn't necessarily mean the surgeon is standing at the operating table.

"In the long haul, all of us believe strongly our clients will be exonerated," he said.

New details of the government's case emerged in a statement filed last month by John Masters, a special agent in Portland for the Office of the Inspector General, an investigative arm of the U.S. Department of Health and Human Services.

Masters said his investigation found that the alleged fraudulent billing at Eugene-based Cardiovascular Surgical Associates had been going on since at least 1993.

Masters said the investigation began in August 2003, after investigators received a tip from a former employee of the doctors' practice who alleged the doctors were improperly billing Medicare and Medicaid for assistants at surgery who were not performing procedures that would justify their presence.

At issue is a section of the Medicare regulations that states "an assistant at surgery must actively assist when a physician performs a Medicare-covered surgical procedure. ... Since an assistant would, thus, be occupied during the surgical procedure, the assistant would not be able to perform (and thus could not bill for) another surgical procedure during the same time period."

Masters said he found evidence that the doctors were made aware of this regulation.

Witnesses told him that assistants at surgery for Cardiovascular Surgical Associates provided "no assistance, or only `token' assistance at cardiac surgeries," Masters said.

Assistants at surgery perform tasks under the direction of the surgeon during an operation, including opening (the initial cut), retracting (exposing the surgical site), stemming blood flow, removing veins and arteries to be used as bypass grafts, suturing, and closing, according to a report to Congress by the General Accounting Office.

Whether an assistant is used depends on how complicated the operation is and the medical condition of the patients.

The American College of Surgeons has broken all this down in a 164-page study that classifies about 5,000 procedures and whether assistants should be used `almost always,' `sometimes,' or `almost never.' About 1,750 of the procedures are designated as `almost always' needing an assistant.

The study recommends an assistant "almost always" for the myriad cardiac procedures listed, including bypasses.

Masters said investigators reviewed thousands of patient records, surgical logs, anesthesia logs and billing records, then prepared summaries of the doctors' operating room schedule on particular days from 2000 to 2003, which "demonstrate numerous incidents of fraudulent billing."

Four of those summaries were attached to Masters' statement.

On March 30, 2000, records show that Baldwin was the primary surgeon on a case that began at 8:11 a.m. in OR 15, assisted by Glover, and that Baldwin was the assistant surgeon on a case led by Glover that began at 8:35 a.m. in OR 3. Glover also assisted in a third case that began at 9:19 a.m. while the two earlier surgeries were still happening, the records show.

On Oct. 17, 2002, Hicks was assisting on three different surgeries occurring at the same time, the federal records show.

On May 19, 2003, Baldwin was assisting on two surgeries that began at 8:37 a.m. and 9:07 a.m., the records show.

On Dec. 16, 2003, Glover was assisting on one surgery that began at 8:30 a.m. and another that started at 8:41 a.m., the records show.

While the investigation continues, the government and the doctors are engaged in a skirmish over a legal file in the possession of PeaceHealth, the Bellevue, Wash.-based health care provider that bought Cardiovascular Surgical Associates in November 2004.

In August, PeaceHealth lawyers notified government investigators that they were in possession of a file created by a Boston lawyer, Thomas Crane, who specializes in defending and advising doctors in health care fraud and abuse cases. The doctors had hired Crane some time before they sold their practice to PeaceHealth.

PeaceHealth lawyers have told government investigators they're willing to turn the file over to the government if they get a court order to do so, but lawyers hired by the doctors objected, saying attorney-client privilege still exists between the doctors and Crane.

Today, in U.S. District Court in Portland, Judge Anna Brown will hear arguments on whether that attorney-client privilege still stands, or whether PeaceHealth should be ordered to turn the file over to investigators.