United States v. Natale

719 F.3d 719

UNITED STATES of America, Plaintiff–Appellee,

v.John NATALE, Defendant–Appellant.

No. 12–3231.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 2013.

Decided June 11, 2013.

Rehearing and Rehearing En Banc Denied July 23, 2013.^*

Amarjeet Singh Bhachu (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Joseph T. Gentleman, Attorney, Gentleman Law, Chicago, IL, Matthew J. Sullivan (argued), Attorney, Law Office of Matthew J. Sullivan, Chicago, IL, for Defendant–Appellant.

Andrew L. Schlafly, Attorney, Far Hills, NJ, for Amicus Curiae.

Before BAUER, FLAUM and SYKES, Circuit Judges.

FLAUM, Circuit Judge.

When another doctor reviewed the post-surgical CT scan from one of Dr. John Natale's patients, something did not seem right. Natale had previously repaired the patient's aortic aneurysm, and the IMAGE aneurysms, a condition involving weakened vascular walls in the aorta, the main artery exiting the heart. Treatment for aneurysms generally involves surgery, during which the surgeon cuts out the weakened arterial tissue and replaces it with a synthetic graft.

Treatment of aortic aneurysms is especially complex. The aorta is the main conduit delivering oxygenated blood from the heart to other body parts. It thus consists of a wide tube that leaves the heart and extends down the center of a person's torso. See Figure 1. As such, it is much like an interstate highway—large, wide, and designed to deliver high volumes of blood (which would be like cars on the highway) quickly to the destination body parts. And just as an interstate highway has exits that divert traffic to smaller local roads, arteries branch off from the aorta to deliver blood to the various organ systems throughout the body. For example, the hepatic artery carries blood to the liver; the gastric artery delivers blood to the stomach; and the renal arteries ensure perfusion of the kidneys. See Figure 2. The aorta ultimately

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forks into two branches, becoming the left and right iliac arteries. The iliac arteries in turn become the femoral arteries, which carry blood to the legs and lower extremities.

Surgeons use two different types of synthetic grafts to repair the weakened aortic walls. A tube graft performs exactly as its name implies. A tube replaces the weakened arterial wall (or is used to create a bypass around the weakened artery). See Figures 3B and 4B. The tube graft attaches to the aorta itself, before the vessel splits into the iliac arteries. In contrast, a bifurcation graft splits into two branches at its lower end, with the two branches attaching to the iliac arteries, not the aorta. As a result, the bifurcation graft itself has the shape of an upside-down “Y”. See Figures 3A and 4A.

While all aortic aneurysms present complications, aortic aneurysms above (suprarenal aneurysms) or near (juxtarenal aneurysms) the renal arteries prove especially difficult. Treating these aneurysms requires the surgeon to clamp the renal arteries, sever them from the aorta, replace the juxtarenal segment of the aorta with a graft, and reattach the renal arteries to the graft. As a result, post-operative renal arteries attach to and branch off from the synthetic graft, not the natural aorta.

Medicare requires doctors to submit bills using a five-digit “CPT” code, which determines the level of Medicare reimbursement. Because aneurysms involving the renal arteries require a more complex procedure, Medicare reimburses such surgeries at higher rates than simpler repairs. In this case, the indictment accused Natale of performing the simpler repair surgery while submitting the CPT codes and receiving reimbursement for treatment of the more complex suprarenal aortic aneurysm. For the surgeries described in the indictment, use of these billing codes netted Natale about $3,700 more, in total, than the codes for less complex aneurysms allowed.

More specifically, Natale faced two counts of health care fraud, see18 U.S.C. § 1347, one count of mail fraud, see id. § 1341, and two counts of making false statements relating to health care matters, see id. § 1035. At the root of all five counts sat alleged falsities contained in the operative reports for several of Natale's patients. According to the government, these statements gave the impression that Natale had performed the more complex procedure involving the renal arteries. Among other statements, for example, Natale dictated that he “reimplanted” or “implanted” renal arteries of several patients.¹ His operative notes also stated that a “button of the right renal artery tissue was then cut out and sewn to a portion of the graft with 5–0 Prolene.” Thus, he described sewing the renal arteries directly into the synthetic graft (the 5–0 Prolene) as if he had repaired an aneurysm involving the renal arteries. In addition to these statements (and others) suggesting involvement of the renal arteries, Natale's operative reports and other notes suggested use of bifurcation grafts rather than tube grafts. For example, one note explains that he “extended the limbs of the bifurcation graft down to the external iliac artery bulge.” In reality, the government charged, Natale had performed a simple repair below the renal arteries using only a tube graft. These allegedly false statements in the operative reports provided both the misrepresentations necessary for the scheme to defraud and the falsities necessary for the false statement counts.

B. Procedural History

At trial, the government offered the expert testimony of Dr. George Anton, a surgeon with Hillcrest Hospital in Cleveland. Anton testified that Natale supported his use of the higher-paying billing codes through the statements in the operative reports. Operative reports generally provide a summary of the surgery—describing what procedure was done, what the doctor noticed, what complications, if any, occurred, etc. Northwest Community policy required completion of and submission of operative reports following all surgeries.

Anton also identified what he believed were false statements in Natale's operative reports. While the reports indicated that Natale had inserted bifurcation grafts involving the renal arteries, Anton believed that Natale had instead used simple tube grafts below the renal arteries—a procedure that would not justify the billing codes Natale had submitted. Anton reached this conclusion by comparing post-surgical CT scans of Natale's patients with the procedures described in Natale's operative reports and other notes. Anton could make this comparison because synthetic material appears differently from natural tissue on the CT scans. Thus, when viewing these scans, Anton could see precisely what type of graft Natale had used and where these grafts attached to the aorta.

According to Anton, the CT scans showed only a tube graft, the top of which attached to the aorta below the renal arteries and the bottom of which attached to the aorta above the iliac arteries. See Figures 3B and 4B. Natale's operative reports and other notes, however, suggested that Natale had inserted a bifurcation graft that attached to the aorta above the renal arteries—thereby requiring that the renal arteries attach to and branch off from the synthetic graft—and below the end of the aorta, attaching to each iliac artery. See Figures 3A and 4A. Although the operative reports described bifurcation grafts, Natale did not use billing codes for bifurcation grafts. Anton also used demonstrative exhibits to help the jury visualize his opinions and testimony.

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Another government witness, Kelly Hartung, described Medicare practices, policies, and procedures. Hartung worked for the corporate contractor charged with administering the Medicare program in Illinois and several other Midwest states. She told the jury that Natale had submitted billing codes for aneurysm repair involving the renal arteries, consistent with Natale's notes but inconsistent with Anton's reading of the CT scans. Hartung also testified that, when doctors enroll in the Medicare program as an authorized biller, they receive notice of Medicare policies, procedures, and rules, and acknowledge having read and understood those rules. At various other points in the claim submission process, doctors reaffirm their knowledge of Medicare billing rules and policies, verifying

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that the bills they have submitted were for work actually performed and medically necessary. Finally, Hartung told the jury about Medicare's auditing process, explaining that during an audit, Medicare “would request documentation. That request ... can be for the operative report[,] ... X-rays, lab notes, [and/or] personal office notes that a physician may have made.”

Like the Medicare representative, Anton also discussed operative reports. He made no mention of their relevance in Medicare billing, but he did explain that operative reports help doctors make treatment decisions following surgery. They are especially helpful—and important—for physicians who did not perform the surgery on the patient but are tasked with future treatment.

Medicare never requested, received, or reviewed the operative reports describing the surgeries at issue in this case. Nor did this case arise from a Medicare audit. Instead, one of Natale's patients sought treatment from a competing vascular surgeon at Northwest Community. (It's unclear, but ultimately irrelevant, whether the patient sought treatment for the same or a different condition.) That surgeon ordered the CT scans and noticed the discrepancies to which Anton later testified at trial. He reported Natale to the review committee at Northwest Community, ultimately resulting in this investigation and prosecution.

Natale testified in his own defense. He acknowledged that the grafts at issue did not extend above the renal arteries, but described the aneurysm as juxtarenal, placing it just below the renal arteries. As a result, he expla...