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September 11, 1958


Appeals, Nos. 17 to 27, inclusive, Oct. T., 1958, from convictions in Court of Quarter Sessions of Philadelphia County, Feb. T., 1955, Nos. 404-413, May T., 1955, No. 974, in case of Commonwealth of Pennsylvania v. Benjamin N. Litman. Convictions reversed.


Nochem S. Winnet, with him Charles M. Solomon, Francis X. Hope, Jr., and Fox, Rothschild, O'Brien & Frankel, for appellant.

Juanita Kidd Stout, Assistant District Attorney, with her James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 187 Pa. Super. Page 538]


The defendant, Benjamin N. Litman, a medical doctor, duly licensed to practice medicine, was convicted and sentences were suspended on 11 bills of indictment, each of which charged him with having committed the felony of obtaining money by false pretenses from the Medical Services Association of Pennsylvania, hereinafter called "Blue Shield." Each indictment further charged that the defendant falsely represented to Blue Shield that he did personally provide and perform certain surgical and medical services for a named person at Wynnefield Hospital; that he was the medical doctor in charge of the patient; that, on the contrary, the surgical services were performed by a certain named chiropodist

[ 187 Pa. Super. Page 539]

    and that the patient was under the care and charge of the chiropodist during patient's confinement in the hospital.

The evidence showed that Blue Shield is a nonprofit corporation created under the provisions of the Nonprofit Medical and Dental Service Corporation Act of 1939, hereinafter referred to as "Medical Act," as amended (15 PS § 2851-1501 et seq.), and that it operates a medical care plan under contracts with subscribers and under contracts with doctors. The defendant doctor made a written application to Blue Shield in which he stated that he was "a doctor of medicine licensed to practice in the State of Pennsylvania, and I agree to provide medical services in accordance with 'The Medical Service Plan of the Medical Service Association of Pennsylvania.'" (Emphasis added) The plan contained a section with a heading in large black type: "REPORTING SERVICES PROVIDED TO SUBSCRIBERS". (Emphasis added) The first sentence in this section is as follows: "In order for the Association to compensate Participating Doctors, it is necessary that they promptly report all services provided to subscribers to the Association on a DOCTOR'S SERVICE REPORT." (Emphasis added) In each of the 11 cases the defendant, as a medical doctor and as the owner and operator of Wynnefield Hospital, filed the doctor's service report with Blue Shield. In each of these reports the defendant signed the following: "I certify that I was the doctor in charge of the patient during the period shown above and that I am legally qualified to perform the service stated herein and that I personally provided said service." (Emphasis added) Preceding this certificate was a description of the service provided, under a paragraph which contained the following heading: "REPORT ONLY THE SERVICE YOU PERSONALLY RENDERED THE PATIENT". The defendant

[ 187 Pa. Super. Page 540]

    left blank item 23, which contained the following language: "If any other physician participated in the case, give name, address and relationship to case:". In each case the Blue Shield, relying upon the doctor's service report, made payment to defendant of the fee provided in the fee schedule. These prosecutions were brought upon complaint of the Blue Shield when it became aware that the defendant had not personally performed the surgical operations upon the subscribers. Accompanying each check in payment was a printed statement addressed to the defendant and prepared by Blue Shield saying that payment had been made to defendant for the services provided by him. Several of the subscribers, as witnesses for the Commonwealth, generally testified to the pre-operative and post-operative care and the laboratory and surgical services that were provided for them in defendant's hospital. Most of the subscribers recollected having given their written consent to the hospital to perform the operations. Almost every one of the chiropodists who were called by the Commonwealth testified to the fact that he had recommended to his patient a surgical operation; that he was not properly equipped in his office to perform the operation and that he had recommended to the patient the Wynnefield Hospital for this purpose; that the patient gave his written consent for the operation to the hospital and not to the chiropodist; that he himself had performed the operation in Wynnefield Hospital; that the defendant was the doctor ...

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