A group of doctors at Rush University Medical Center’s prestigious orthopedic department routinely overbooked their schedules and relied heavily on residents to perform surgeries, violating federal Medicare billing rules, according to a newly unsealed whistle-blower lawsuit filed in U.S. District Court in Chicago.
The suit alleges that in one instance, a surgeon never entered the operating room to supervise a procedure. In others, a surgeon monitored residents performing operations via video feed while simultaneously performing his own operations in nearby rooms.
The lawsuit, filed by another Rush surgeon, Dr. Robert Goldberg, along with a former hospital executive, portrays Rush’s orthopedic center as a business focused on quantity over quality, risking patient health in pursuit of “monetary rewards and celebrity status.” To do that, doctors sidestepped specific Medicare billing rules that require teaching physicians to be present during critical portions of procedures, the suit said.
Six surgeons are named as defendants; the lawsuit mainly focuses on procedures performed in 2004 and 2005.
Among the group, Dr. Richard Berger is the most high profile. He pioneered “minimally invasive” hip-replacement surgery and for many years was a star consultant for Zimmer Holdings, an implant-maker.
Whistle-blower lawsuits relate to claims in which the government is victimized, and plaintiffs stand to share in a portion of any monetary awards. In this case, some of the plaintiffs’ accusations, related to the use of office space in return for patient referrals, have been settled by the Justice Department, with the medical center agreeing to pay more than $1.5 million but not admit wrongdoing.
After that settlement in March, the other accusations relating to surgical practices were unsealed. They were amended in June. The government has declined to intervene in the remaining portion, but has a right to do so later, according to court documents.
Besides Berger, doctors named in the suit are Brian Cole, Mitchell Sheinkop, Aaron Rosenberg, Craig Della Valle and Wayne Paprosky. Also named are the medical center; Rush SurgiCenter, an outpatient surgery center; and Midwest Orthopaedics, a practice that counts many of the city’s professional sports teams and a bevy of celebrities among its clients.
Sheinkop left Midwest Orthopaedics’ practice about two years ago, said his attorney, and is no longer on staff at Rush. The rest of the doctors remain at Midwest and at Rush, according to Midwest’s attorney, Jeffrey Rogers.
“We note that the government has declined intervention in these allegations (regarding patient safety), and we also want to point out that we had no participation in the settlement (involving office space) whatsoever,” Rogers said. “I don’t know what their proof is or where they get this. It’s too early to tell; we’ve only had this complaint a week. But we would deny that there were any overlapping surgeries that violated applicable rules and regulations, or threatened the health or safety of any patient.”
In a statement, the hospital said, “Rush believes that the lawsuit has no merit and intends to vigorously defend the case.”
Mark Fedota, an attorney for Sheinkop, said his client had not been served with the lawsuit and “would not want to comment on something he has not seen.”
James Helmer, a Cincinnati lawyer who specializes in whistle-blower suits, said the fact that the federal government hasn’t intervened should not be interpreted by the defendants as “good news” because the government reserved the right to do so later.
The focus of the suit is reimbursem*nt rules from Medicare for surgical procedures. The federal government requires the teaching physician to “be present during all critical portions of the procedure and immediately available to furnish services during the entire service,” according to rules cited in the suit.
On April 22, 2004, the complaint alleges, Sheinkop, who performs hip and knee replacements, never entered operating room 9 to perform a knee replacement on a 67-year-old patient. He performed another procedure in operating room 7.
According to the complaint, one of the residents who performed the surgery “admitted that Dr. Sheinkop had never been present for any of Ms. S’s surgery, but stated that he had been instructed by Dr. Sheinkop to falsify the medical record.”
On the morning of Oct. 21, 2004, Cole, who specializes in sports medicine and cartilage restoration, had five surgeries scheduled; two at 7:30 a.m., another at 8 a.m., another at 8:30 a.m. and another at 9:30 a.m., the suit said. The 8 a.m. operation was in Rush’s operating room 5, while the others were in the outpatient SurgiCenter, the suit said.
According to the complaint, when Cole had concurrent surgeries, he would “remain physically present in one operating room, while ‘monitoring’ a second operating room through an electronic video link that projected images through the fiber optic arthroscopy camera onto a large monitor.”
Rogers said the video system was used “to determine room readiness, such as when it was clean for another patient and sometimes also for teaching purposes.” But Rogers said it wasn’t used to remotely manage surgeries.
Rogers added that “it’s a big mistake” to rely on a schedule to determine when “critical portions” of a surgery took place.
“It’s simply a schedule,” he said. “That doesn’t mean that’s when the operation took place. … It’s like you’re reserving a conference room.”
In the suit, Goldberg alleges that other doctors’ schedules were so packed that it was “physically impossible” for them to be there for the critical portions required by Medicare.
In July 2005, the year after Goldberg filed his lawsuit, Berger abandoned Medicare altogether, and was quoted by Orthopedics Today as saying: “For the most part I wanted to eliminate the burden of Medicare’s rules and regulations and the fear of possible penalty. … Performing over 750 joint replacements a year, I was drowning in paperwork, which took away time from my practice and my two little girls at home. Despite my constant efforts to maintain compliance, I worried about making an honest mistake and being penalized, with triple damages, and possible criminal prosecution.”
In 2008, the Tribune reported about his relationship with Zimmer Holdings, which paid Berger handsomely, more than $2 million in 2007, for training other doctors and promoting Zimmer devices.
Two years later, Zimmer and Berger have parted ways, the doctor confirmed Wednesday. The New York Times recently reported that Berger questioned the safety of at least two of the Warsaw, Ind.-based manufacturer’s products.
The complaint suggests a link between the alleged overbooking and the pursuit of income from Zimmer.
But Berger in an interview Wednesday said Goldberg and his lawyers are uninformed.
“From the time that I make the incision to putting the implants in, it usually takes about 45 minutes,” Berger said. “The fact that I did six procedures in eight hours meant that I had a fair amount of down time. … I can only talk about me personally, but I do every procedure myself, from the start to putting the implants in. I do not personally do the closure myself, and I tell all of my patients that. The reason is that I have people who are better at it than I.”
The plaintiffs’ attorney, Colin Wexler, declined comment.
mmharris@tribune.com
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