U.S. v. Custodio
| Decision Date | 08 November 1994 |
| Docket Number | Nos. 93-1443,93-1444,s. 93-1443 |
| Citation | 39 F.3d 1121 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Joseph M. CUSTODIO, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Raymond P. Moore, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, CO, for defendant-appellant.
Gregory C. Graf, Asst. U.S. Atty. (Henry L. Solano, U.S. Atty., with him on the brief), Denver, CO, for plaintiff-appellee.
Before BRORBY, Circuit Judge, LAY, Senior Circuit Judge, 1 and McWILLIAMS, Senior Circuit Judge.
Dr. Joseph M. Custodio, M.D. was convicted of eighteen counts of submitting false claims to the United States under 18 U.S.C. Sec. 287 2. He appeals his conviction on the grounds the district court erred in instructing the jury and in denying his motion for acquittal on all counts based on insufficient evidence of intent. The Government cross appeals, claiming the district court erred in applying the sentencing guidelines. 3 We affirm.
Dr. Custodio was a licensed obstetrician-gynecologist (OB-GYN) employed as a full-time, in-house civilian "partner" of a medical insurance program at Evans Army Community Hospital (EACH). The insurance program, called CHAMPUS (Civilian Health and Medical Program for the Uniformed Services), serves dependents of service personnel by paying nonmilitary professionals to provide health care. Evans is a U.S. Army hospital in Fort Carson, Colorado. CHAMPUS brought private physicians into EACH to treat the dependents of service personnel. These physicians became CHAMPUS "partners."
CHAMPUS partners provide services for which they bill CHAMPUS. Because the government provides the facilities, equipment, supplies, and nursing staff, CHAMPUS partners are expected to bill significantly less than they would bill if they treated patients at their own facilities with their own staff, equipment, and supplies. CHAMPUS establishes schedules which give the amount, called the "prevailing rate," that it will pay for all the various kinds of medical procedures that may be performed. The government negotiates with each private care provider a discount percentage which is to be applied to the CHAMPUS prevailing rate to determine the amount the provider can bill CHAMPUS. Dr. Custodio's partnership agreement provided that he would bill at sixty percent of the CHAMPUS prevailing rate.
Dr. Custodio worked in the OB-GYN department at EACH with other CHAMPUS partners and active duty medical professionals. The active duty health care providers did not bill for their work because they received salaries from the Army. Dr. Custodio and other CHAMPUS partners billed for every procedure they performed.
In addition to treating patients, Dr. Custodio's responsibilities included supervision and being on call. The family practice doctors, residents, and midwives were certified to perform certain procedures independently. Some other procedures they might perform under the supervision of an OB-GYN, and some procedure they could not perform under any circumstances. The family practice doctors and midwives, for example, could perform normal vaginal deliveries as well as take admission histories and do physical examinations without supervision by an OB-GYN, but they could not independently perform a cesarian section.
Documentary evidence together with testimony from patients and members of the OB-GYN department established that Dr. Custodio billed CHAMPUS for services others performed without his supervision. In some instances he was not physically present when the services were performed; in some instances he was briefly present, but not at the request of the provider. He also billed twice for some procedures and billed for other procedures no one performed. He billed for Most of the eighteen counts for which Dr. Custodio was convicted were instances where he billed for either an admission history and physical examination and/or a normal spontaneous vaginal delivery and post-partum care which another person performed. The CPT states that "delivery services" include an admission history, physical examination, and post-partum care. 4 In some instances, Dr. Custodio billed for delivery services and separately billed for an admission history and physical as well as post-partum care. The Government however, did not charge Dr. Custodio with fraud in unbundling and the court did not admit evidence of unbundling at trial. 5
procedures done by other OB-GYNs, family practice doctors, and certified nurse midwives, procedures they were fully qualified to perform without his supervision.
To bill CHAMPUS, Dr. Custodio had to sign a patient chart and a claim form, part of which the patient filled out first, submitting the latter to CHAMPUS's fiscal intermediary, Blue Cross/Blue Shield via an electronic data service.
Dr. Custodio did not contest that he filled out claim forms for procedures he did not perform. Although Dr. Custodio did bill for work he did not do, he urges that the Government failed to prove that he acted with the intent to defraud. Dr. Custodio made no secret of the fact he was signing other people's charts and having patients he did not treat fill out claim forms.
When he heard complaints about his billing, Dr. Custodio went to Dr. Patsy WebberHunt. Dr. Patsy WebberHunt was the Assistant Chief or Acting Chief of the OB-GYN department for about two months of the approximately one year period Dr. Custodio worked at EACH. Dr. WebberHunt testified that on becoming aware of the complaints, she told Dr. Custodio she would talk with Colonel Strampel, the Deputy Commander for Clinical Services at EACH and second in command of the hospital, 6 about the matter and would inform Dr. Custodio of what the Colonel said.
Dr. WebberHunt spoke with Colonel Strampel about whether Dr. Custodio could bill for procedures performed by nurse midwives and residents. She did not speak with him about whether Dr. Custodio could bill for procedures performed by family practice doctors. Dr. WebberHunt reported to Dr. Custodio that he could bill when he was supervising nurse midwives and residents. She also told him her interpretation of what Colonel Strampel had said was that he could bill when he was supervising family practice doctors, although she did not specifically speak with Strampel on that question and only his interpretation counted. She stated she had never told Custodio he could bill for procedures performed by other OB-GYNs.
Dr. WebberHunt also testified she had no knowledge of Custodio's fee for service agreement with CHAMPUS, and no authority to determine how Custodio was paid. Furthermore, her duties did not involve monitoring the CHAMPUS program.
Colonel Strampel testified that as a CHAMPUS partner, Dr. Custodio could bill for procedures performed by residents that he directly supervised, that is, if he were in the same room and prepared to handle any problems the resident might run into. Colonel Strampel denied telling Dr. WebberHunt that Dr. Custodio could bill for work performed Colonel Strampel recalled a number of conversations he had with Dr. Custodio during which the subject of Custodio's poor relations with other staff members came up. At various times, Colonel Strampel had heard from the active duty members of the department that Dr. Custodio was more interested in billing than in treating patients. He specifically recalled one nurse had reported to him that Dr. Custodio had signed her patient's chart but the patient did not recall ever seeing the doctor. When questioned by Colonel Strampel, Dr. Custodio replied that either the patient had forgotten him or he had signed the wrong chart. Colonel Strampel further testified it is common knowledge that physicians are not supposed to bill for procedures others performed. It does not appear Dr. Custodio ever brought up his concerns about billing practices to Colonel Strampel.
by family practice doctors, certified nurse midwives, or other OB-GYNs.
Dr. Custodio was terminated as a CHAMPUS partner as a result of an investigation by the Inspector General initiated by Nurse Lieutenant Vargo as a result of her experience with Custodio as a patient in the OB-GYN department. Dr. Custodio had attempted to make Lieutenant Vargo fill out a CHAMPUS claim form for him, telling her he had reviewed her chart. Lieutenant Vargo asked what had happened to the claim form she had filled out on entry. Dr. Custodio replied "the pediatrician must have picked it up for the circumcision of your baby." Lieutenant Vargo responded Dr. Custodio also signed Vargo's chart for a physical examination he had not performed.
At the conclusion of the trial, both parties provided the court with their proposals for jury instructions. The Government included a deliberate ignorance instruction in its proposal. Dr. Custodio objected to the deliberate ignorance instruction. If the judge determined to give one, however, Custodio offered an edited version of the instruction to be used. The trial court agreed to use the edited version. The instruction stated:
You may find the defendant had knowledge of a fact if you find beyond a reasonable doubt that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. Knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless or foolish. However, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.
The adequacy of a jury instruction is reviewed de novo in...
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False statements and false claims.
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