Appeal from the Order of the State Board of Medical Education and Licensure in case of State Board of Medical Education and Licensure v. William P. Catena, M.D., No. 75-74-M.
Paul H. Titus, with him Linda H. Jones and John M. Burkhoff, of Titus and Marcus, for petitioner.
Pamela J. Arnold, with her William C. Kennedy, Assistant Attorney General, and Edward G. Beister, Jr., Attorney General, for respondent.
Judges Crumlish, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the death of President Judge Bowman. Judge DiSalle did not participate in the decision in this case. Concurring Opinion by Judge Mencer.
[ 49 Pa. Commw. Page 543]
William P. Catena, M.D. (Petitioner) appeals an order of the State Board of Medical Education and Licensure (Board) suspending his license to practice medicine for six months and placing him on probation with conditions for a period of three years.
Petitioner was charged by the Board under Section 15 of the Medical Practice Act of 1974 (Act), Act of July 20, 1974, P.L. 551, as amended, 63 P.S. § 421.15, based on two separate allegations of misconduct.
[ 49 Pa. Commw. Page 544]
First, Petitioner was convicted and sentenced in federal court for knowingly presenting to an agency of the federal government claims for reimbursement under Medicare for medical services supplied, which claims were false, fictitious and fraudulent.*fn1 Second, Petitioner treated two Pennsylvania State Troopers, who were working as undercover narcotics agents, for weight control. During the course of treatment, Petitioner prescribed quantities of Schedule II drugs*fn2 designed to suppress their appetities, but failed to conduct adequate physical examinations, monitor the treatment, or maintain proper medical records for them.
The hearing examiner found that the conviction for Medicare fraud constituted a violation of Sections 15(a)(2)*fn3 and 15(a)(8)*fn4 of the Act and that the inadequate care given the troopers constituted a violation of Section 15(a)(8). An order was entered suspending Petitioner's license for six months and placing him on probation for three years. By the terms of the probation, the Petitioner would be precluded from treating
[ 49 Pa. Commw. Page 545]
patients for obesity or cosmetic weight loss. Upon Petitioner's application for review, the Board affirmed the hearing examiner's order on February 14, 1979. This appeal followed.
Petitioner argues before this Court that (1) conviction for Medicare fraud does not constitute a misleading, deceptive, untrue or fraudulent representation in violation of Section 15(a)(2) of the Act, nor does it establish unprofessional conduct in violation of Section 15(a)(8) of the Act, (2) the discipline imposed by the Board as a result of the findings based on Medicare fraud is so harsh in light of Petitioner's medical competence and attainment as to be an abuse of discretion, and (3) the finding of a violation of Section 15(a)(8) of the Act based on the treatment of the troopers is not supported by substantial evidence.
Petitioner argues first, that although fraud in billing patients would be within Section 15(a)(2), fraud in billing a third party payor is outside the doctor-patient relationship and, therefore, outside the practice of medicine as defined in Section 15(a)(2).
While Petitioner admits that billing patients is included within the scope of "practice of medicine," there are no Pennsylvania cases that so hold. Other jurisdictions, however, have determined that submission of fraudulent bills constitutes fraud in the practice of medicine. Matanky v. Board of Medical Examiners, 79 Cal. App. 3d 293, 144 Cal. Rptr. 826 (1978); Kaplan v. Department of Registration and Education, 46 Ill. App. 3d 968, 361 N.E.2d 626 (1977); Wassermann v. Board of Regents, 11 N.Y.2d 173, 182 N.E.2d 264, 227 N.Y.S.2d 649 (1962). We also note that this Court stated in State Dental Council and Examining Board v. Friedman, 27 Pa. Commonwealth Ct. 546, 367 A.2d 363 (1976) that Section 3(i) of The Dental Law,
[ 49 Pa. Commw. Page 546]
Act of May 1, 1933, P.L. 216, as amended, 63 P.S. § 122(i), empowered the State Dental Board to maintain the standards of the dental profession, which standards deal with "all aspects of professional conduct." Id. at 551, 367 A.2d at 366. In view of the similarities between the two professions, it would be illogical to assume that the legislature intended for the standards relating to dentists to be more inclusive than those relating to physicians. We hold, therefore, that billing patients is within the scope of the term "practice of medicine" as used in Section 15(a)(2).
Petitioner urges, however, that when a physician bills a third party payor the activity is outside the doctor-patient relationship and, therefore, outside the practice of medicine. Petitioner relies on cases decided under the prior law, which was contained at Section 12 of the Medical Practice Act of June 3, 1911, P.L. 639, as amended, formerly 63 P.S. § 410, repealed by the Act of July 20, 1974, P.L. 551. That section provided, inter alia, that a license to practice medicine could be revoked for "grossly unethical conduct." Cases interpreting this phrase limited its application to "'those breaches of the trust, confidence and reliance, necessarily attendant upon the intimate relationship of physician and patient, which amount to gross abuses of the standards of professional conduct generally recognized as essential to the proper practice of medicine and surgery.'" Pennsylvania State ...