Rare Occurrence: Dermatologist Acquitted of More Than 40 Counts of Health Care Fraud Following a 16-Day Trial: Part 1 of a 3-Part Series Part One: Reviewing the Charges

Friday, December 4, 2015
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Dr. Amir Bajoghli, of McLean, Virginia, was a dermatologist and owner of the Skin & Laser Surgery Center.  Dr. Bajoghli was recognized by former Washingtonian Magazine, Northern Virginia Magazine, U.S. News & World Report and Castle Connolly as "Top Doctor."  Washingtonian and Northern Virginia Magazines bestowed this honor over several consecutive years.  

To read more about Dr. Bajoghli's recognitions as "top doctor," click here for the Washingtonian and click here for Northern Virginia Magazine.

Dr. Bajoghli was indicted by a federal grand jury in August 2014, on 60 counts of health care fraud, aggravated identity theft and obstruction of justice.  To read the full press release issued by the Department of Justice (DOJ) regarding his indictment, click here.  The identity theft and obstruction charges were later dropped.  On Monday, November 30, 2015, following an unusually lengthy 16-day trial, Dr. Bajoghli was acquitted of the remaining counts (more than 40) of health care fraud.  

In this three-part blog series, I will review Dr. Bajoghli's charges (highlighting some unusual features of this prosecution), prosecutorial overcharging and a doctor's reliance on medical assistants to carry out routine medical procedures. 


The Bulk of the Allegations Stem from Mohs Surgeries.

The indictment claimed that Mohs micrographic surgery (Mohs surgery) was highly lucrative for the defendant, Dr. Bajoghli.  The indictment further claimed that Dr. Bajoghli was not a fellowship-trained Mohs surgeon.

Mohs surgery is a specialized surgical technique, usually performed by dermatologists, that is a highly effective treatment for certain types of skin cancer.  It was developed in the late 1930's by Dr. Frederick Mohs.  With a few refinements over the years, it has now come to be widely accepted over the last decade by an increasing number of dermatologists and surgeons.  

Mohs surgery is performed as an outpatient procedure with local anesthesia and involves the removal of cancerous skin from healthy skin in stages, or single layers at a time, as each layer is microscopically examined by the surgeon.  Mohs surgery is generally performed on more sensitive areas of the body where the preservation of healthy tissue and cosmetic appearance are particularly important, such as the head and neck.  

Prior to performing Mohs surgery, the presence of cancerous cells is required to be confirmed by biopsy.  Following the Mohs procedures, repair of the surgical site is necessary often by way of suturing, flap closures or skin grafts.  

For more information on Mohs surgery from the Skin Cancer Foundation, click here. 


Counts 1-53 of Indictment: Health Care Fraud.

The indictment claimed that Dr. Bajoghli executed a scheme to defraud health care benefit programs.  These health care benefit programs included Medicare, Tricare, Blue Cross and Blue Shield Federal Employee Program (BCBS FEP) and Anthem Blue Cross Blue Shield (Anthem) as defined by Section 24(b), Title 18, United States Code. 

The indictment alleged various fraudulent billing practices as a part of the reported scheme to defraud to include the following:

(a)    Fraudulent Billing for Mohs Surgery: It was alleged that Dr. Bajoghli routinely misdiagnosed patients in order to cause fraudulent claims to be submitted to health care benefit programs by diagnosing benign tissue as skin cancer.  Additionally, the performance of the alleged unnecessary Mohs surgeries required Dr. Bajoghli to have in-house laboratories for microscopic analysis of the patients' tissue on frozen section slides.  However, it was reported that one such laboratory doubled as a lunch room and staff was directed to improperly dispose of medical waste in order to save money. 

(b)    Fraudulent Billing for Wound Repairs: It was alleged that Dr. Bajoghli often directed his unlicensed and unqualified medical assistants to perform wound closures on Mohs surgery patients.  It was further reported that Dr. Bajoghli was not always present to supervise these procedures leaving critical decisions regarding the procedures to his unlicensed, unqualified and unsupervised medical assistants.  It was also alleged that Dr. Bajoghli caused fraudulent claims to be submitted to health care benefit programs falsely stating current procedural terminology (CPT) codes reflecting heightened levels of complexity for wound closures when in fact none existed.  This practice is known as "up-coding."  Lastly, it was reported that when Dr. Bajoghli was approached by a medical assistant expressing concerns as to her competency to perform wound closures, she was handed sutures and told to practice on raw chicken at home. 

(c)    Fraudulent Billing for Medical Services Performed by Other Providers: It was alleged that Dr. Bajoghli caused fraudulent claims to be submitted under his national provider identifier (NPI) for medical services furnished by his physician's assistant or nurse practitioner.  Health care benefit programs generally pay more for services billed under physicians' NPI's versus physicians' assistants' or nurse practitioners' NPI's.  Medical services provided by the physician's assistant or nurse could only be billed under Dr. Bajoghli's NPI if the services furnished were incident to the dermatologist's professional services and under his immediate supervision.  It was reported that neither was the case in the alleged fraudulent billing incidents, and that often Dr. Bajoghli was not present at all at the locations where the services were rendered. 

(d)    Fraudulent Billing for Permanent Section Pathology Slides and Reports: It was alleged that Dr. Bajoghli fraudulently submitted claims to patients' health care benefit programs for the preparation and analysis of permanent section slides when he in fact did not perform either service.  It was reported that Dr. Bajoghli fraudulently represented pathology reports as his own work product when instead he routinely outsourced the slides for preparation and analysis at a minimal fee.  It was further alleged that Medicare was double-billed for the preparation of the permanent section biopsy slides, once by the outsourced company and again by Dr. Bajoghli.  

To read the full indictment, click here. 

Dr. Bajoghli was found not guilty on all counts.  To read the full verdict form, click here. 


Counts 54-59 of Indictment: Aggravated Identity Theft.

The six counts for aggravated identity theft correspond to the alleged unlawful use of identification of six various patients.  The indictment alleged that Dr. Bajoghli caused the identification of these patients to be submitted to health care benefit programs as a part of fraudulent claims for payment for services rendered with respect to the patients.  According to the indictment, the information subject to unlawful use included the name, date of birth and insurance identification number of the patients in violation of Section 1028A, Title 18, United States Code.  The misuse was alleged to be in furtherance of the allegations as described in counts 1-53 of the indictment and in conjunction with violations of Section 1347, Title 18, United States Code.  These charges were later dismissed on day 12 of the trial as the result of Dr. Bajoghli's motion for judgment of acquittal on such counts.  

To read the full motion for judgment of acquittal, click here. 


Count 60 of Indictment: Obstruction of Justice.

This count was in relation to questionnaires sent to patients of Dr. Bajoghli during the government's investigation of the doctor's billing practices, specifically those for wound repairs.  The indictment claimed that Dr. Bajoghli instructed his receptionist to inform patients that contacted the office inquiring who performed their wound closures that Dr. Bajoghli performed the wound closure regardless of whether this was true.  The indictment claimed that Dr. Bajoghli's actions were an attempt to obstruct, influence or impede an official proceeding in violation of Section 1512(c)(2), Title 18, United States Code.  This charge was later dismissed as well when, in June 2015, a superseding indictment was filed with the court. 


The Saga to be Continued.

I will continue my discussion of this interesting and illustrative case in future blogs. 


Comments?

Are you facing a criminal investigation or charges of health care fraud allegations?


Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.  

Our attorneys have defended dermatologists in medical malpractice cases involving Mohs surgery.  Our attorneys have defended physicians, medical groups and other health care providers in false claims acts (whistleblower) cases and suits.  Our attorneys have represented Medicare and Medicaid providers in audits, investigations, overpayment demands, responses to subpoenas and search warrants and responses to civil investigative demands (CIDs).  

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.


Sources:

Indictment, pages 3, 6-10 & 13-14, Aug. 12, 2014.

"Mohs Surgery."  Skin Cancer Information.  The Skin Cancer Foundation: 2015.  Website.  3 Dec. 2015.

Novak Jones, Diana.  "Dermatologist Clears 40 Counts of Health Care Fraud."  Law 360.  Portfolio Media Inc.: 30 Nov. 2015.  Web.  1 Dec. 2015.

U.S. Attorney's Office, Eastern District of Virginia.  "Northern Virginia Dermatologist Charged With Health Care Fraud."  Press Release.  U.S. Department of Justice: 12 Aug. 2014.  Web.  2 Dec. 2015.


About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida area.  www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.


Keywords: Florida health attorney, indictment charging health care fraud, health law attorney, Florida health lawyer, The Health Law Firm, health law defense lawyer, False Claims Act defense counsel, whistleblower defense attorney, health care litigation lawyer, legal representation for health care fraud defense, health professional attorney, health care litigation attorney, unnecessary medical procedures, intentionally misdiagnosing patients, fraudulent billings defense attorney, defrauding health care benefit programs, Medicare audit defense attorney, Medicare billing attorney, dermatologist lawyer, physician billing attorney, physician upcoding, legal representation for surgeons



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12/4/2015

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