105446-105521
| Decision Date | 01 January 1998 |
| Docket Number | 105446-105521 |
| Citation | 1998 MBAR 371 |
| Parties | Commonwealth v. Harold F. Goodman & another1 |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 9 Mass. L. Rptr. 318
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): DOERFER
Defendant Harold F. Goodman, an orthopedic surgeon, and defendant Orthopedic Surgery of the South Shore, Inc. stand indicted on multiple counts of violating G.L.c. 118E, 40, the Medicaid False Claims Act. The defendants now move to dismiss the indictments as violative of due process under the Fourteenth Amendment and Article 12 of the Declaration of Rights on the ground that they are based on insufficient evidence, are duplicitous, and deprive them of the right to indictment by grand jury. For the reasons discussed below, the defendants' motion is DENIED.
Each of nineteen indictments against defendant Harold F. Goodman charges that:
on divers dates from on or about August fourteenth in the year of our Lord one thousand nine hundred and ninety-two, through on or about May twelfth in the year of our Lord one thousand nine hundred and ninety-five at Quincy in said County of Norfolk actuated by a continuing criminal intent, being a person who had furnished services for which payment may be made under c. 118E of the General Laws of Massachusetts, did knowingly and wilfully make or cause to be made a false statement or representation of a material fact in one or more applications for payment for services under the said c. 118E by claiming payment for the provision of certain injections to Patient No. which were not medically necessary.
Each of nineteen additional indictments against Goodman charges that:
on divers dates from on or about August fourteenth in the year of our Lord one thousand nine hundred and ninety-two, through on or about May twelfth in the year of our Lord one thousand nine hundred and ninety-five at Quincy in said County of Norfolk actuated by a continuing criminal intent, being a person who had furnished services for which payment may be made under c. 118E of the General Laws of Massachusetts, did knowingly and wilfully make or cause to be made a false statement or representation of a material fact in one or more applications for payment for services under the said c. 118E by claiming payment for the provision of certain radiologic examinations of Patient No. which were not medically necessary.
The indictments against defendant Orthopedic Surgery of the South Shore, Inc. (South Shore) are substantially the same.
Following the defendants' motion for a bill of particulars, the Commonwealth submitted detailed information with respect to each indictment, including the name of the patient, the patient's Medicaid recipient number, the date each treatment was provided, the type of treatment (either injection or radiologic examination) and corresponding treatment code,2 the amount billed for the treatment, the amount paid by Medicaid, and a unique transaction control number.
Thereafter, the Commonwealth amended its bill of particulars to state:
Each such course of procedures constitutes a separate pattern of conduct which, when analyzed from beginning to end as specified in each indictment, demonstrates that the Defendant Goodman must have known that the procedures for which he submitted or caused to be submitted claims to the Medicaid program were medically unnecessary, or that he acted in reckless disregard as to whether such procedures were medically necessary. Each indictment covers all of the procedures administered to a particular recipient. Any one of those procedures, viewed in isolation from the pattern of conduct demonstrated by each of the nineteen patients whose treatment is the subject of these indictments, may not, standing alone, demonstrate the corrupt motive and intent of the Defendant Goodman. Performance of any single minor procedure, even without adequate supporting documentation, justification or interpretation, may be the result of negligence, ignorance or mistake. When such procedures are repeated dozens of times over many months, however, the pattern of conduct is revealed as deliberate, or at best, reckless. When this conduct results invariably in the submission of claims for payment from the Medicaid program, the only conclusion which fairly explains the pattern of treatment is conscious, fraudulent intent.
The defendants first move to dismiss the indictments on the ground that they are supported by insufficient evidence. As a general rule, an indictment valid on its face should not be dismissed absent a showing that the defendant's ability to obtain a fair trial is prejudiced. Commonwealth v. Pellegrini, 414 Mass. 402, 405-06 (1993). Thus, in most cases, the court should not inquire into the adequacy or competency of the evidence upon which an indictment is based. Commonwealth v. Robinson, 373 Mass. 591, 592 (1977); Commonwealth v. Salman, 387 Mass. 160, 166 (1982). However, the court will examine the evidence heard by the Grand Jury where there is a claim that an indictment was unsupported by any evidence of criminal activity by the defendant. Commonwealth v. McCarthy, 385 Mass. 160, 161 (1982).
In order for indictments to fulfill their traditional function as an effective protection against unfounded criminal prosecutions, they must be supported by at least enough evidence to establish both the identity of the accused and probable cause to arrest him. Id. at 163; Commonwealth v. Angiulo, 415 Mass. 502, 510 (1993). The standard for a valid indictment is whether the grand jury heard reasonably trustworthy information sufficient to warrant a prudent man in believing that the defendant had committed or was committing the offense charged. Commonwealth v. McCarthy, supra at 163; Commonwealth v. O'Dell, 392 Mass. 445, 450-52 (1984).
The crime for which defendants are indicted, the submission of false claims to the Medicaid program, is set forth in General Laws Chapter 118E, section 40, which provides in relevant part:
Any person who furnishes items or services for which payment may be made under this chapter, who: (1) knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under this chapter... shall be punished... G.L.c. 118, 40 (1993).
Goodman and South Shore contend that the Grand Jury heard no evidence that any of the 1,882 applications for payment described in the indictments contained "a false statement or representation of a material fact" as required by the statute.
The Grand Jury heard evidence that under the Medical Assistance Program:
(A) A provider may furnish or prescribe medical services to a recipient... only when, and to the extent, medically necessary. A service is "medically necessary" if:
(1) It is reasonably calculated to prevent, diagnose, prevent the worsening of, alleviate, correct, or cure conditions in the recipient that endanger life, cause suffering or pain, cause physical deformity or malfunction, threaten to cause or to aggravate a handicap, or result in illness or infirmity; and
(2) there is no comparable medical service available or site of service available or suitable for the recipient requesting the service that is more conservative or less costly. Medical services shall be of a quality that meets professionally recognized standards of health care, and shall be substantiated by records including evidence of such medical necessity and quality. 130 Code Mass. Regs. 450.204.
In addition, the Grand Jury had before them Goodman's provider application which included a signed agreement "to comply with all state and federal statutes, rules, and regulations applicable to the Provider's participation in the Medical Assistance Program."3 Thus, the Grand Jury could infer that Goodman knew that under the Medicaid regulations, he was entitled to be reimbursed only for medically necessary services and that he therefore intended to represent, in submitting each claim for payment, that the particular service which he provided the recipient, and for which he sought reimbursement under the Medicaid program, was medically necessary as defined in 130 Code Mass. Regs. 450.204.
Finally, the Grand Jury heard evidence that Goodman's course of treatment of each of the nineteen patients with repeated trigger point injections and x-rays did not meet professionally recognized standards of health care and was not medically necessary, and that Goodman had sufficient training and experience to know that such was the case. Thus, the Grand Jury heard reasonably trustworthy information sufficient to warrant a prudent man in believing that with respect to the treatment of each patient at issue, in applying for payment under Medicaid, Goodman knowingly and willfully made a false representation that the services for which he sought payment were medically necessary. Accordingly, this Court concludes that the Grand Jury had probable cause to charge Goodman and South Shore with the violations of the Medicaid False Claims Act, G.L.c. 118, 40, charged in the present indictments.
Goodman and South Shore further contend that the indictments against them must be dismissed as duplicitous. Duplicity is the charging of two or more distinct and separate offenses in a single count of an indictment. Commonwealth v Fuller, 163 Mass. 499, 499-500 (1895); Commonwealth v. Barbosa, 421 Mass. 547, 553 n.10 (1995); United States v. Canas, 595 F.2d 73, 78 (1st Cir. 1978). The Commonwealth is generally free to bring indictments in as many counts as it feels appropriate in the circumstances. This discretion is limited only when the form of the indictment infringes...
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