People v. Gregory

• Decision Date: 29 January 1990
• Docket Number: No. C,C
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Buford L. GREGORY, Defendant and Appellant. rim. C005229.

Page 527

266 Cal.Rptr. 527

217 Cal.App.3d 665

The PEOPLE, Plaintiff and Respondent, v. Buford L. GREGORY, Defendant and Appellant.

No. Crim. C005229.

Court of Appeal, Third District, California.

Jan. 29, 1990.

Certified for Partial Publication.

Review Denied May 17, 1990.

[217 Cal.App.3d 668] William Flenniken, Jr. (court-appointed), for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Jane N. Kirkland, Supervising Deputy Atty. Gen., Judy Kaida, Deputy Atty. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

Defendant, a doctor of osteopathy, was convicted of seven felony counts of Medi-Cal fraud in violation of Welfare and Institutions Code section 14107. ¹ (Further undesignated statutory references are to the Welfare and Institutions Code.) He was prosecuted for knowingly submitting false information for the purpose of obtaining greater compensation than that to which he was legally entitled for furnishing services.

Defendant appeals contending (1) Medi-Cal regulations are void for vagueness because they failed to apprise him that his method of determining the appropriate payment for his services was wrong; (2) the trial court erroneously instructed the jury on the elements of the crime; (3) the trial court erred in refusing a jury instruction on mistake of fact as a defense; (4) the trial court erred in failing to give sua sponte a jury instruction defining "knowingly"; and (5) irrelevant evidence of uncharged acts was improperly admitted.

In this published portion of the opinion, ² we reject his vagueness challenge. We also conclude the trial court properly declined to give a special instruction defining

"knowingly." In an unpublished portion, we reject his remaining contentions. We shall therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

From January 1986 through June 1987, defendant developed a thriving medical practice in Stockton. On an average day, defendant saw an average of 60 patients and sometimes as many as 110 patients. Sometimes several patients were seen at once.

Most of his patients were Southeast Asians and required interpreters, provided by defendant. Most patients were Medi-Cal beneficiaries. Half of his patients were new patients. Defendant paid independent contractors ("contract drivers") to transport patients to his office. Patients generally spent five minutes in the examination room before being sent to the adjoining pharmacy or to defendant's laboratory for testing.

In the summer of 1986, defendant's office manager told him that Medi-Cal would not approve of the way he conducted his practice. Shortly thereafter the employment relationship ended, and defendant learned the office manager had complained to the County Health Department.

In December 1986, Ken Baumgarten, then Senior Investigator for the Department of Justice Bureau of Medi-Cal Fraud, pretending to be a financial investor in medical practices, met with defendant to discuss a possible partnership in defendant's clinic. Defendant stated he was in California to make enough money to take back to Utah, because Utah did not have a comparable Medi-Cal program, and defendant could make more money here in one month than he could in an entire year in Utah.

On January 6 and 7, 1987, Baumgarten returned to defendant's office and observed defendant as he treated 14 patients. Defendant's convictions resulted from Medi-Cal claims submitted for treatment of the patients observed by Baumgarten. The examinations (and consequent diagnoses) of patients involved in the seven counts of which defendant was convicted were described by Baumgarten and Dr. David Schneider, a physician and auditor for the Audits and Investigations Division of the State of California Department of Health, as follows:

Patient Samnang T. (count II) was in the examining room simultaneously with three other patients. Defendant looked at Samnang's throat for 30 seconds but did not touch Samnang's body. Defendant spent a total of four to five minutes examining all four of the patients in the room. Defendant diagnosed Samnang as having "dermatitis." Such a diagnosis requires an examination of the patient's entire body and would take the average doctor a minimum of 20 minutes to perform; the examination could not be performed in 30 seconds.

Patients Keo T. (count V), Siem K. (count VI), and Khean K. (count VII) were in the examining room simultaneously with one other patient. Defendant remained approximately six feet away from Keo, observed Siem's mouth for approximately three seconds, and observed Khean's throat for approximately two seconds. Defendant did not touch any of the patients' bodies. He spent less than four minutes examining all four patients.

Defendant diagnosed Keo T. as having "conjunctivitis." A doctor could not make such a diagnosis without examining the patient.

Defendant diagnosed Siem K. as having "acute bronchitis and tonsillitis." A doctor could not make such a diagnosis based upon an examination that lasted only a few seconds.

With regard to patient Khean K. (count VII), a doctor could not perform a standard intermediate examination in two seconds.

Defendant spent less than two minutes examining the throat of patient Yik Y. (count X). He did not touch Yik's body. Defendant diagnosed Yik as having acute "bronchitis, sinusitis." It would be impossible for a doctor to make such a diagnosis based solely upon a brief observation of the patient's throat.

Patient Mary T. (count XII) never entered the examining room. As Mary stood in the doorway of the examining room, defendant refilled her Tylenol prescription. Defendant diagnosed Mary as having "acute bronchitis, rhinitis." A doctor could not make such a diagnosis without examining the patient.

In the examining room, defendant remained approximately six feet away from patient Roeum R. (count XIV) and spent approximately two minutes with her. Defendant diagnosed Roeum has having "chronic constructive pulmonary disease and asthma." A doctor could not make such a diagnosis without examining the patient.

For each patient, defendant submitted a claim on a form supplied by Medi-Cal for an "intermediate examination." The claim form required no description of the services rendered, other than "intermediate examination" and designation of a numerical billing code. The Medi-Cal program paid each claim.

Dr. Schneider testified that physicians who participate as health care providers in the Medi-Cal Program receive a Medi-Cal "billing guide." Defendant acknowledged he had received the "billing guide." The "billing guide" states that an "intermediate examination" consists of "A level of service such as a complete history, an examination of one or more organ systems, or an in depth counseling, or discussion of the findings, but not requiring a comprehensive examination of the patient as a whole." We shall examine the "billing guide" in more detail later.

Defendant testified. He agreed an "intermediate examination" should take 15 minutes but claimed he believed that could include time spent by his staff. His bilingual staff performed such services as assisting patients in completing the case history forms, which took five to ten minutes, so that total time spent by him and his staff approximated 15 minutes per patient. He believed his interpretation met the criteria for an "intermediate examination." The Medi-Cal program never advised him of any minimum time requirement or that his presence was required throughout that time. Defendant testified he was able to treat an average of 60 patients per day because he had "very competent help." Defendant said the Medi-Cal investigator was not present during the entire examinations. Defendant testified he never submitted false claims to the Medi-Cal Program with an intent to defraud.

DISCUSSION

I. THE ASSERTED VAGUENESS IN MEDI-CAL PAYMENT RULES WAS PROPERLY ADJUDICATED AS A QUESTION OF FACT IN THE TRIAL COURT

Defendant contends, "The Medi-Cal regulations which [defendant] violated were void for vagueness because they failed to apprise [defendant] that his method of determining the proper payment category for services rendered was wrong." The People contend (1) defendant waived the issue by not tendering it in the trial court and (2) defendant has no standing to challenge the "regulations."

Both defendant and the People fail to appreciate the way defendant's vagueness challenge was appropriately tendered and resolved in the trial court. Because of this shared misapprehension, the contentions of both defendant and the People are wrong.

In order to show why this is so, it is first necessary to explain how payment for services is authorized by Medi-Cal.

Section 14105 authorizes the director of the state Department of Health to adopt rules and regulations for rates of payment for health care services. (§ 14105, subd. (a).) The pertinent Medi-Cal regulation is found in section 51503 of title 22 of the California Code of Regulations. ³ Medi-Cal The Medi-Cal "billing guide" that defendant received is, in fact, a copy of the Relative Value Studies. We shall refer to it as such. The pertinent page from the Relative Value Studies is set out in Appendix A, post. There, definitions of "intermediate examination" and of unit values for such examinations for new and established patients may be found. (Ibid.)

rates of [217 Cal.App.3d 673] payment are calculated according to a schedule based on the usual charges made to the general public, not to exceed a formula based on various [217 Cal.App.3d 674] medical procedures described in the 1969 California Relative Value Studies, published by the California Medical Association and applied throughout the medical community. (Ibid.)

Although defendant purports to challenge Medi-Cal "regulations," it appears that his vagueness challenge is aimed at the asserted failure of the Relative Value Studies to...