When he was 11, my son broke his thumb playing football. We took him straight for an x-ray. The doctors set his bone and gave him a cast, which delighted him because he got it in camouflage color and it meant he did not have to take notes at school. Four weeks later, the cast came off and he was fine. (In the meantime he broke his other thumb, too, and ended up with matching camouflage casts. I’ll save that story for another day.)
But what if we had never found out that he had a broken thumb? What if the doctors had looked at the x-ray and said he had no broken bone and he did not need a cast? He might have wound up with permanent damage to his thumb.
That misdiagnosis is hypothetical for us, but according to the FBI it was not imaginary for several elderly people in Owings Mill, Maryland (near Baltimore) and Harrisburg, Pennsylvania. According to an article in the Baltimore Sun, Balto. Co. X-Ray Company Accused of Falsifying Reports, the FBI says that a company called Alpha Diagnostics let its vice president Timothy Emeigh review x-rays of patients. Emeigh was licensed as a radiographer, which is an x-ray technologist. However, under Medicare rules, a final x-ray review must be done by a licensed doctor – which Emeigh was not.
The FBI says that the fraud against Medicare reached $3.3 million before the Government shut it down.
Since I’m a whistleblower lawyer, of course one of my thoughts was — who was the whistleblower? So far the Government is not saying.
But the Government is saying that the Medicare fraud had more than financial effects on taxpayers. According to the FBI, Emeigh blew the diagnoses for several elderly patients. At one Virginia nursing home, several patients had conditions that were overlooked because the x-ray was read wrong. The article does not say what happened to the patients who had the bad diagnoses.
Emeigh told the patient’s doctors that he was sending the exams off for review by a crew of doctors who worked for another firm, Alpha Rads. According to the FBI, the company consisted of nothing more than Emeigh himself.
The FBI says the targets of the investigation are Emeigh and Alpha Diagnostics’ CEO, Rafael Chikvashvili. Because the FBI is talking about fraud by Alpha Diagnostics, it is my bet that the Government will be pursuing a False Claims Act (“FCA”) case against the company and both men in order to recoup the $3.3 million. Under the FCA, the Government is entitled to damages of between 2 and 3 times the amount of money that was stolen from it. If a whistleblower alerts the Government to the fraud and files the suit, the whistleblower is entitled to between 15 and 30% of what the Government recovers. The percentage that goes to the whistleblower varies depending on whether the Government takes over the case, or whether the whistleblower ends up pursuing the case on his own.
And here’s a disconcerting fact about this fraud: way back in 1993 Emeigh had been fined by the Maryland Board of Physician Quality Assurance for “promoting an unqualified man to the position of X-ray technician at Alpha Diagnostics.” No doubt Emeigh was emboldened by the fact that in that incident, the Maryland Board of Physician Quality Assurance gave him nothing more than a slap on the wrist, fining him just $1200 for conduct that could have caused patient harm.