DOJ intervenes in whistleblowers' case against Florida doctor

by Ben Vernia | November 26th, 2014

On November 21, the U.S. Attorney for the Southern District of Florida announced that the government had intervened in two qui tam relators’ case against a south Florida doctor and his practices for submitting false claims to government health care programs. According to the U.S. Attorney’s press release:

The United States has intervened in a whistleblower lawsuit against Donald C. Proctor, Jr., M.D., an otolaryngologist practicing in Vero Beach, Florida, and Grove Place Surgery Center, LLC, an ambulatory surgical center managed by Dr. Proctor, that is located in Vero Beach, Florida.

Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, and Derrick L. Jackson, Special Agent in Charge, U.S. Department of Health and Human Services, Office of Inspector General (HHS-OIG), made the announcement.

According to the allegations made in the lawsuit:

Dr. Proctor billed Medicare for Mohs surgeries and related reconstructions that he either did not perform or were medically unnecessary. Dr. Proctor would routinely see patients who had been referred to him with a confirmed skin cancer lesion and inform them that they had additional lesions requiring Mohs surgery, even though the additional lesions had not been confirmed through a biopsy as cancerous or simply did not exist.

Mohs surgery is a specialized surgical procedure for removing certain types of skin cancers in specific areas of the body, including the face. The surgery is performed in stages in which the surgeon removes a single layer of tissue and then, after a microscopic evaluation of the excised tumor, performs additional stages, if necessary, until all of the cancer is removed. To increase his Medicare reimbursement, Dr. Proctor would perform three to four stages, or more, of Mohs surgery in the vast majority of surgeries he performed, even though that is far outside the norm and was often not necessary.

Additionally, it is alleged that Dr. Proctor defrauded Medicare by billing for unnecessary or nonexistent reconstructions, called adjacent tissue transfers, to close up surgical defects allegedly left by the Mohs surgeries.

Adjacent tissue transfers are complicated and often time-consuming procedures sometimes performed by physicians to close a defect resulting from the removal of a lesion on a patient’s skin. The lawsuit alleges that Dr. Proctor billed for these procedures in connection with virtually every Mohs surgery he claimed to have performed, even though in most cases they were not medically necessary or not performed at all.

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The case is captioned United States ex rel. Becker & Wildes v. Donald C. Proctor, Jr., M.D. et al., No. 11-14214-Civ-Martinez (S.D. Fla.), and was filed by Ferdinand F. Becker, M.D., a facial plastic surgeon and former Mohs surgeon who referred patients to Dr. Proctor, and Linda Wildes, who was employed as Dr. Proctor’s histology technician for over eight years. They filed the case under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private parties to sue on behalf of the federal government and receive a share of any recovery. The Act also authorizes the federal government to intervene in and assume primary responsibility for litigating a filed lawsuit, as the government has done in this case.

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