People v. Lee
| Decision Date | 12 July 1984 |
| Docket Number | Docket No. 68358 |
| Citation | 134 Mich.App. 278,351 N.W.2d 294 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Edith J. LEE, Defendant-Appellee. 134 Mich.App. 278, 351 N.W.2d 294 |
| Court | Court of Appeal of Michigan — District of US |
[134 MICHAPP 280] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Edwin M. Bladen and [134 MICHAPP 281] Chester S. Sugierski, Jr., Asst. Atty. Gen., for the People.
Ivan E. Barris and Janet G. Callahan, Detroit, for defendant-appellee.
Before J.H. GILLIS, P.J., and GRIBBS and GAGE, * JJ.
This case involves allegations of Medicaid fraud. The defendant, Edith J. Lee, is awaiting retrial on one count of obtaining money by false pretenses over $100 1 and one count of submitting false claims to the Medicaid program. 2 Her first trial resulted in a mistrial due to a hung jury. [134 MICHAPP 282] In this interlocutory appeal the prosecutor challenges a pretrial order to indorse res gestae witnesses.
The information was divided into two counts. Both counts alleged that the defendant acted with one common plan and scheme to defraud the Michigan Medical Assistance Program by submitting claims for home visit services not rendered or for a higher fee than that to which she was entitled.
The second count covered the treatment period of July 28, 1977, through January of 1978. 3 It was brought under the Medicaid False Claim Act, M.C.L. Sec. 400.601 et seq.; M.S.A. Sec. 16.614(1) et seq. That statute took immediate effect on July 27, 1977. Count I covered the pre-statutory period of January 1, 1976, through July 27, 1977, and was brought under the general "false pretenses" statute. 4
The Medicaid program provides for reimbursement to doctors for treating patients in "home visits". The fee for the first patient seen in the home varied between $8.90 and $12 during the period involved. (For simplicity, we will use an average estimate of $10 in our discussion.) Additional patients seen during the same visit entitled the doctor to $2 each. To assist in computer tabulations, code numbers are used in the claim for reimbursement. Different numbers are used to differentiate the first patient from subsequent patients.
The defendant allegedly treated several members of a family on the same day but submitted separate invoices for each patient seen on that day. Each invoice used code numbers indicating first patient status as opposed to first patient and subsequent patient status. Thus, Dr. Lee would receive reimbursement of $50 for seeing a family of five (five at $10 each) instead of the allowable [134 MICHAPP 284] $18 (the first patient at $10, all remaining patients at $2 each).
Dr. Lee allegedly submitted the invoices for treatments in the same family one at a time over an average of 11 months so that the Medicaid program could not detect that she had used the first patient diagnosis code for each of these patients seen during the same visit. Assuming that the defendant in fact treated each person for which a claim was submitted, the prosecutor estimated that approximately $500,000 of the sum paid to Dr. Lee by Medicaid was fraudulently obtained.
In the first trial the prosecutor relied on circumstantial evidence to show that Dr. Lee did not treat all the patients for which claims were submitted. The defendant's patient records contained only 25% to 30% of the names for which she billed Medicaid. The defendant explained that each name in the record meant that the entire family was treated during the home visit. 5 The prosecutor matched the defendant's records with the invoices she submitted to the Medicaid program, comparing the number of "family" names with the number of invoices submitted for that day. For example, the defendant's record for December 20, 1976, indicated 16 "families" were treated, for which Dr. Lee submitted 322 invoices for payment. The prosecutor also tabulated the top 125 billing days during this period and the number of minutes required to treat the number of patients claimed on the defendant's invoices. On December 20, 1976, if the defendant worked an 8-hour or 12-hour day, [134 MICHAPP 285] she would have spent 2.01 or 3.02 minutes respectively on each patient. From these statistics, the prosecutor sought to create the inference that the defendant could not have treated all the patients for which she billed Medicaid. These statistics were tabulated from the invoices submitted for the two years and involved approximately 5,000 Medicaid patients and over 96,000 home visits.
For 1976 and 1977, only thirteen invoices were found which did not involve home visits. No home visit invoices used the code number for subsequent patients.
While awaiting retrial, defendant moved to dismiss or, in the alternative, for a bill of particulars and for an order requiring the prosecutor to indorse all res gestae witnesses. Wayne County Circuit Court Judge Arthur M. Bowman denied the motion to dismiss and for a bill of particulars, but granted the motion to indorse. The court did not require that all 5,000 patients be indorsed. It required only that res gestae witnesses--of an undetermined number--be indorsed. The court encouraged the parties to agree to the number of witnesses. Apparently the parties were unable to compromise, and this appeal resulted.
The res gestae rule has its genesis in M.C.L. Sec. 767.40; M.S.A. Sec. 28.980:
(Emphasis added.)
From this statute the Michigan courts have found a "duty of the prosecution to show the whole transaction as it was, regardless of whether it tends to establish guilt or innocence". People v. Tann, 326 Mich. 361, 367, 40 N.W.2d 184 (1949). The purpose of the rule is to protect a defendant from the suppression of favorable testimony or from selective investigation by the state. People v. Raider, 256 Mich. 131, 135, 239 N.W. 387 (1931); Maher v. People, 10 Mich. 212, 225 (1862).
Only in Michigan has this rule found continued firm support. See 7 Wigmore, Evidence (Chadbourn Rev., 1978), Sec. 2079, pp. 538-539. The rule has been criticized by commentators, courts, and counselors. For example, Professor Chadbourn, in his revision of Wigmore's treatise on evidence, calls the rule "a doctrine of so little worth". Id., p. 543.
There has been at least one legislative attempt to abolish the rule. See HB 4394 (introduced 4/14/83). As discussed in the Criminal Defense Newsletter, "[p]roponents of the bill argue that Michigan's res gestae witness rule is an anachronism unmatched in any other state's rules of criminal procedure". Res Gestae Witness Bill Sparks Debate, Criminal Defense Newsletter, Vol. 6, No. 8, p. 6 (July, 1983).
As stated by this panel in People v. Cortez, 131 Mich.App. 316, 324, 346 N.W.2d 540 (1984), . In addition, the prosecutor has an ethical duty to disclose evidence favorable to the defense:
"A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment" DR 7-103(B). 6
From all this, we conclude that a defendant's rights are sufficiently protected by sources outside the res gestae rule. The rule can result in delay or dismissal of
cases even when the constitutional standards are met. This Court is powerless to change the res gestae rule; nevertheless we urge its abolition.
Whether Dr. Lee's patients are res gestae witnesses--that is, witnesses to the alleged criminal transaction--turns on the elements of the crimes charged. The elements of Medicaid fraud are: (1) a person makes, presents, or causes to be made or presented (2) to an employee or officer of the state (3) a claim under the Social Welfare Act, 1939 P.A. 280(4) knowing the claim to be false, fictitious, or [134 MICHAPP 288] fraudulent. M.C.L. Sec. 400.607; M.S.A. Sec. 16.614(7), In re Wayne County Prosecutor, 121 Mich.App. 798, 801-802, 329 N.W.2d 510 (1982); People v. American Medical Centers of Michigan, Ltd., 118 Mich.App. 135, 144, 324 N.W.2d 782 (1982). "False pretenses" is shown when (1) a person makes a false pretense, (2) with intent to defraud, and (3) the fraud is accomplished. M.C.L. Sec. 750.218; M.S.A. Sec. 28.415; People v. Lee, 259 Mich. 355, 356, 243 N.W. 227 (1932); People v. Taurianen, 102 Mich.App. 17, 27, 300 N.W.2d 720 (1980).
We now apply the elements of the offenses to the circumstances of Dr. Lee's patients. The patients are not witnesses to the doctor's procedure of billing the Medicaid program. They have no ability to witness those elements of the offenses relating to the billing process and thus are not res gestae witnesses. Cf. People v. Anderson, 64 Mich.App. 218, 223, 235 N.W.2d 746 (...
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People v. Payne, Docket No. 111884
...separate violations into one count under a "common plan or scheme" theory. The case relied upon by the people, People v. Lee, 134 Mich.App. 278, 351 N.W.2d 294 (1984), did not specifically consider the propriety of charging a defendant under a common plan or scheme theory. Rather, the Lee C......