People v. Kanaan

• Decision Date: 17 April 2008
• Docket Number: Docket No. 275266.,Docket No. 275264.
• Citation: 278 Mich. App. 594,751 N.W.2d 57
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ahmad Ali KANAAN, D.D.S., Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Eight Mile Road Dental, P.C, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

751 N.W.2d 57

278 Mich. App. 594

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ahmad Ali KANAAN, D.D.S., Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee, v. Eight Mile Road Dental, P.C, Defendant-Appellant.

Docket No. 275264.

Docket No. 275266.

Court of Appeals of Michigan.

Submitted April 9, 2008.

Decided April 17, 2008, at 9:05 a.m.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Mark W. Matus, Assistant Attorney General, for the people.

Butzel Long (by Max R. Hoffman, Jr., and Debra A. Geroux), Lansing, for the defendants.

Before: WILDER, P.J., and MURPHY and METER, JJ.

MURPHY, J.

Following a bench trial, defendants were convicted of 11 counts of filing false Medicaid claims under the Medicaid False Claim Act (MFCA), MCL 400.601 et seq., relative to dental services performed on three patients. Defendant Ahmad Ali Kanaan D.D.S., (Kanaan), was sentenced to one day in jail with credit for one day served, and he was ordered to pay restitution to the state in the amount of $532, along with fines totaling $1,100 and other various costs. Defendant Eight Mile Road Dental, P.C. (Eight Mile Dental or the office), was also ordered to pay a fine of $1,100, as well as a variety of costs. On appeal, defendants argue that the evidence was insufficient to show that the submitted Medicaid claims for dental services were false and insufficient, assuming falsity, to establish that defendants had knowledge that the claims were false. The thrust of defendants' argument concerning sufficiency is that the falsehood of the claims was subject to differing opinions by the dentists who testified regarding the identification of restored tooth surfaces, and, therefore, criminal liability under the MFCA was inappropriate. Defendants also maintain that the MFCA is preempted by 42 U.S.C. 1320a-7b, which is a federal criminal statute addressing Medicaid fraud that has a stricter mens rea requirement than the MFCA. We affirm, holding that the MFCA is not preempted by 42 U.S.C. 1320a-7b and that there was sufficient evidence to sustain the convictions.

I. Basic Facts and Procedural History

Kanaan was the sole dentist practicing at Eight Mile Dental during the period relevant to the criminal charges filed by the prosecution. Paulette Carter worked for defendants as the office manager from 1999 until March 2006. She explained the procedures followed in the office for preparing patient records and treatment plans. According to Carter, Eight Mile Dental recorded patient information on a two-part carbon form referred to in the office as a "white." The white form contained a list of numbers that corresponded to a patient's teeth, as well as various personal information, including the patient's name, phone number, and insurance carrier. Carter testified that Kanaan would perform an inspection of the patient's mouth and would call out any problems requiring treatment to a dental assistant who would then record that information on the white form. Carter stated that whenever Kanaan performed work according to the treatment plan outlined on the white form, he would place his initials on the form next to the number indicating the treated tooth.

Carter indicated that, in order to bill a procedure to a patient, his or her insurer, or Medicaid, the office assistant would enter the information from the white form onto a computer billing program using various codes corresponding to the tooth number, the dentist's identification number, and the code number given to the procedure by the American Dental Association (ADA). Carter testified that typically she would check the white form against the computer screen to ensure that the information was entered accurately. According to Carter, Kanaan reviewed the patients' charts and compared them with the claim form generated by the computer, as did Carter. She agreed that "the responsibility for everything in the chart was basically that of Doctor Kanaan."

Carter testified that following electronic submission of the claims to Medicaid, payment would be received in the form of a "bulk check," which Carter would enter into the computer program, checking to make sure that the amount of the check balanced with the amounts of the claims.

At some point, Dr. Thomas Haupt, a dentist, was asked by the Michigan Attorney General's Office to examine some of Kanaan's patients in regard to an investigation of suspected false Medicaid billings. Haupt had previously assisted the Attorney General in other Medicaid-fraud investigations concerning dental services. Haupt testified that under a contract with the Attorney General, he examined patients for evidence of tooth restorations following decay (placement of fillings) that Kanaan had supposedly performed and billed to Medicaid. Haupt indicated that he performed tooth-decay restorations in his practice, which involves filling the tooth with either an amalgam or a composite substance. He explained that an amalgam filling is silver, gray, or black in appearance, and is a mixture of silver, mercury, and other alloys, whereas a composite filling is made of acrylic and can be matched to the natural color of the tooth. Haupt asserted that in his examinations of the three patients who received dental services that gave rise to the charges, he checked to see whether the various surfaces of a particular tooth that had been reported as being treated and restored by defendants had in fact been restored. Tooth surfaces include, as relevant here, mesial, occlusal, distal, facial, and lingual. These surfaces are referenced for billing purposes and in the record by their first initial, i.e., M, O, D, F, and L.¹ Haupt testified that it is "very obvious" to him upon examination whether a restoration or other treatment has been performed on a particular tooth. Haupt stated that he also looked at x-ray films of the patients' teeth, but that, because of the two-dimensional nature of the x-ray films, their usefulness as a tool in ascertaining whether and where a restoration had taken place was limited.

Haupt testified that he examined one of Kanaan's patients, Aleace Dandridge, who was reported to have had an amalgam filling on the MODLF surfaces of a tooth identified as "tooth number two." Instead, Haupt found a restoration on only the MOD surfaces of the tooth. Similarly, in his examination of tooth number 13, which should have had a DOL amalgam filling according to the billing report, Haupt found only a DO amalgam filling. Further, on the basis of his review of Dandridge's x-rays, Haupt testified that the L surface was not in need of restoration on tooth number 13. He additionally testified that where, according to the Medicaid billing records, there should have been an MLF composite filling on tooth number 9, he found only an ML composite filling.

Haupt also examined Shelby Schantel, another patient treated by Kanaan. According to the billing records, Schantel was supposed to have had a DOLF amalgam filling on tooth number 5, but Haupt found only a DO amalgam filling. Haupt checked for an MODLF amalgam filling on tooth number 12, but found only an MOD amalgam filling. On Schantel's tooth number 13, Haupt found only an MOD amalgam filling, where an MODLF amalgam filling was reported to have been made. Haupt further found an "occlusal and a separate facial amalgam" on Schantel's tooth number 16, where Medicaid had been billed for an MOLF amalgam filling. For Schantel's teeth numbers 6 and 17, respectively, an MLF composite filling and an MOF amalgam filling were reported, but only a facial composite filling and an OF amalgam filling were detected.

Finally, Haupt examined Ava Anderson, a minor. Because Anderson still had her baby teeth, the office used a different reference system to identify her teeth than that used to identify the teeth of the adult patients. According to Anderson's dental records, Kanaan had performed an MOLF amalgam filling on Anderson's tooth letter J; however, when Haupt examined her he found only an MOL amalgam filling. Similarly, Haupt's examination of tooth letter T revealed that there was an O amalgam filling, but defendants had billed for an MO amalgam filling.

Another dentist, Dr. Mert Aksu, testified as an expert witness for defendants. Aksu testified that a dentist's assessment of whether a restoration has been performed on a certain tooth surface is dependent on the dentist's ability to distinguish one tooth surface from another. According to Aksu, a "line angle" demarcates where one surface ends and another begins; this angle is subject to disagreement between dentists, and when teeth are rotated in the jaw, it creates further difficulty for a dentist to perceive the different surfaces. Aksu did not personally examine the patients at issue, but rather reviewed the x-rays taken by Haupt, as well as photographs of the disputed teeth.

With respect to Dandridge, Aksu testified that on tooth number 2, where Haupt found only a three-surface MOD restoration for which a five-surface MODLF one had been reported, he believed that "at one time" the filling had "occupied the facial surface" and that the restoration had originally been on four surfaces. Aksu also disagreed with Haupt's findings of a DO amalgam filling on Dandridge's tooth number 13, which was billed as a DOL amalgam. Aksu found an "extension or encroachment [of the filling] on the lingual surface" of the tooth based on his review of photographic and x-ray images of the tooth. On tooth number 9, with respect to which Haupt found an ML composite filling where an MLF composite filling should have been, Aksu found a composite filling on the "facial view" of a picture of the tooth in addition to fillings on the mesial and lingual surfaces. Aksu's study of the pictures of Schantel's teeth also resulted in discrepancies between his findings and those of Haupt on Schantel's teeth numbers 5, 12, and 13. Aksu did not testify about any...