Home Research Projects What is a Crime? Publications Fraud Against the Public Purse by Health Care Professionals: The Difference of Location PART FIVE: Cases of Fraudulent and Inappropriate Billing

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PART FIVE: Cases of Fraudulent and Inappropriate Billing

This section provides an overview of the cases of fraudulent and inappropriate billing that were found in the public domain in Canada, and then focuses in greater detail on the cases from British Columbia and Ontario.

I. Cases of Health Care Fraud and Inappropriate Billing In Canada

A. Parameters of Data Collection

As stated in the introduction, this study is about health care professionals abusing or defrauding the public health’s fee-for-service system. Included are cases from all the provinces and territories in the public domain (newspapers, court decisions, professional publications, websites, and decisions accessible by request), in which the health professional’s name was mentioned at least once and one or more of the following occurred: 1) administrative investigation or action by a government branch or agency; 2) a professional SRO investigation or action (usually a College of Physicians and Surgeons); or 3) a criminal or quasi-criminal charge. Cases where the allegations were not upheld by a tribunal or court are also included, but there were very few of these [173]. In some cases, there is little information in the public domain–for example, only the professional’s name and the amount he or she was required to return to the health care system. Statistics of recovery from unnamed health professionals were discussed earlier in this paper.

These parameters exclude some spectacular cases of fraud. For example, Stephen Chung impersonated a family practitioner for 15 years in Hamilton Ontario, defrauding OHIP of $4.4 million throughout his career. He was given a conditional sentence because the judge accepted the argument that he was motivated by his passion to be a doctor and to help people, as opposed to greed  [174]. Chung was excluded because he was not recognized as a legitimate health professional in a system where the College of Physicians and Surgeons holds a monopoly on specified services. There are also a number of cases of unnecessary surgery, unnecessary prescribing of drugs, and “sex as therapy,” in which the financial fraud side of the case was never developed (or at least not in the public domain). Cases of defrauding patients (e.g., charging up to $30,000 for ineffective cancer treatment), hospitals, workers’ compensation (without a medicare/OHIP angle), other private insurance companies/financial institutions, or drug plans were also excluded. I have also excluded two psychologists and two doctors who were investigated by the British Columbia MSC after nurses complained that they were overcharging at the pretrial centre in Vancouver. There were conflicting reports in the media on the results, except for the fact that the MSC did not proceed with recovery of the money paid. Excluded at this time are 12 doctors from a Mississauga, Ontario walk-in clinic who were charged with fraud over $5,000 and conspiracy to commit fraud over $5,000 in regard to allegations that they (doctors and the clinic) defrauded the Ontario Health Insurance Plan of about $2 million during the 12 months of 1997. Charges were laid in 2000, and after a preliminary hearing involving three of them they were committed to stand trial on December 19, 2003. As of April 23, 2005, the case is still before the court.

The time frame used is 1990-2003. Cases that were commenced prior to 2003 are followed into 2004 and 2005 for results. Decisions by the Medical Review Committee in Ontario, although a committee of the College, are treated as administrative decisions, not as SRO decisions. The College of Physicians and Surgeons of Ontario has its own disciplinary system, and the MRC is considered somewhat independent of the College and is funded by the Ontario government as an agency of the government.

B. The Cases

The above search and culling of decisions resulted in 87 cases: 36% from British Columbia, 39% from Ontario, 17% from Saskatchewan, 5% from Newfoundland/Labrador and 3% from Quebec (Table 3). Given that I was accessing English newspaper sources, I am fairly certain that the number of cases I found in Quebec is fewer than those in the public domain. I also put most of my efforts into finding cases in British Columbia and Ontario, so there may be cases in other provinces that were in the public domain but were not discovered. In Saskatchewan, the lawyer for the College of Physicians and Surgeons confirmed that the College had dealt with only three doctors on this issue.

Table 3
Cases of Health Care Fraud/Inappropriate Billing by Province, 1990-2003

The 87 cases resulted in at least 113 actions. Table 4 shows the types of actions in each province. For example, 16% of the actions in British Columbia were criminal or quasi-criminal, compared to 31% of the actions in Ontario. Most of the cases in Saskatchewan (81%) were administrative.

Table 4
Types and Numbers of Actions Against Health Care Professionals by Province, 1990-2003

1. Profession and Speciality

   Most (93%) of the cases involved physicians. This is to be expected because physicians bill on a fee-for-service basis in much greater numbers than other health care professionals. There were also two physiotherapists, two chiropractors, one dentist, and one optometrist. Some studies suggest that psychiatrists are more likely to be delinquent than other specialities. Of the 81 physicians, 16% were psychiatrists. A rough indication of their proportion in the profession comes from a search of the College of Physicians and Surgeons of Ontario database for specialists. It indicates that 2,677 of the 37,214 physicians (7%) specialize in psychiatry [175]. In this study, an additional 6% of the delinquent physicians practised psychotherapy, and 57% were general practitioners or family doctors. In the United States, “psychiatrists represent about 8% of all physicians but about 20% of all doctors suspended from Medicaid for fraudulent practices [176].”

2. Gender

   As with most crimes, men appear in the health care fraud/misbehaviour statistics in greater proportion than women. Only 7% of the 87 cases involved women, and 7% of the 81 cases of physicians were women. In 2001, 33% of the 65,525 physicians in Canada were women [177]. A search of the College of Physicians and Surgeons of Ontario database for active physicians, including specialists, indicates that 11,636 or 31% of the 37,214 physicians in the database are female [178].

3. Age and Experience

   For those health care professionals whose age and the year the behaviour commenced were available (N=38), their ages ranged from 29 to 74, and the median age at the commencement of the misconduct was 44 and the mean was 45.3. The average age of physicians in Canada was 47.1 in 1998 and 47.7 in 2002 [179]. The median number of years between graduation and when fraudulent or inappropriate billing started (N=42) was 16.5 years after their graduation from professional degree and the number of years ranged from one to 45.

II. Cases of Fraudulent and Inappropriate in British Columbia and Ontario

This section focuses in greater detail on the 31 cases and 37 actions in British Columbia and the 34 cases and 49 actions in Ontario. Table 5 shows how many of the cases resulted in a particular action. It should be remembered that this analysis is confined to cases in which the health care professionals name made it into the public domain. The most accurate of the three is probably the criminal/quasi-criminal prosecution. Only 19% of the 31 cases in British Columbia, compared to 44% of the 34 cases in Ontario, resulted in criminal or quasi-criminal charges. This difference corresponds with the media coverage and the interviews I conducted, which confirmed that British Columbia appears reluctant to prosecute these offenders and Ontario has taken a “get tough” approach to them.

Only 35% of the cases in British Columbia resulted in action by the professional SRO compared to 65% in Ontario. This too is consistent with media coverage and interview data: the British Columbia College of Physicians and Surgeons [180] leaves these matters to the Medical Services Commission because they are better equipped with the tools to recover inappropriately paid sums. The BC College does not look at these cases unless it involves a quality of care issue or the doctor is convicted of a criminal offence. The Ontario College deals with fraudulent or inappropriate behaviour, even if it is not subject to criminal proceedings. However, if there are criminal proceedings it usually waits for the outcome of these proceedings.

In terms of multiple proceedings, five of the 31 cases in British Columbia (16%), as compared to 12 of the 34 cases (35%) resulted in both SRO and criminal or quasi-criminal action.

The most inaccurate data are on administrative actions. The British Columbia MSC has had more of their administrative actions published in the news media and through their own news releases; OHIP publishes amounts recovered, but seldom the names of the health care professionals [181].

Table 5
Actions Taken in the British Columbia and Ontario Cases of Health Care Fraud and Inappropriate Billing

A. Triggers to Investigation

Although this variable had a slightly larger number of missing cases than cases with data, where data were available, the most frequent trigger for an investigation in British Columbia was a patterns of practice audit (67%); the most frequent triggers in Ontario were a patterns of practice audit (33%) and patient complaints (33%). A patterns of practice audit involves targeting doctors for an investigation based on the fact that their billings were out of line with their colleagues in similar circumstances. A couple of cases were also discovered through complaints from co-workers or employees.

B. Forms of Misconduct/Fraud

Table 6 shows the types of behaviour that the administrative agency or SRO examined. The most frequent type of behaviour was a health care provider billing for services that were not provided (24% of the behaviour investigated in British Columbia and 38% of the behaviour in Ontario).

Table 6
Types of Behaviour dealt with by Administrative Agency or SRO in British Columbia and Ontario

1. Billing for Services Not Provided

   An example of a case where services were not provided is that of Dr. Michael Bogart who was ordered to pay back close to $1 million for fraud between 1990-1996. He billed for services conducted in his Toronto office while he was holidaying in Europe, Australia and various other places. Bogart would regularly bill for seeing patients on Thursday and Friday, when he never saw patients on these days. Another example is Dr. Mario Halenar who apparently charged the MSP in British Columbia for treating a 78 year old woman for problems surrounding child birth and menopause [182].

   When interviewees were asked a general question about whether billing for services that did not occur was fraud, some suggested that such billings may be the result of clerical errors or carelessness and could be explained away. Although recognizing it as fraud, one respondent stated that since the standard of proof is high, it may be hard to prove. One respondent indicated it was fraud, without any provisos. All respondents thought it would be fraudulent for doctors to bill for sexual encounters with their patients. One commented, “the college would be all over them. Most of that stuff is extra curricula–not billed for.”

2. Up-coding

   The next most frequent activity was up-coding–simply charging for more than was performed (19% of the activities in British Columbia and 27% of the activities in Ontario). For example, Dr. Michael Ing, a British Columbia optometrist, billed for extensive eye examinations when conducting only brief examinations. Some doctors bill for a complete physical examination when they do only a brief one.

   When interviewees were asked a general question about whether billing for more than was actually performed was fraud, some suggested that it may be difficult to prove intention and there are grey areas or sliding scale issues that are a matter of interpretation and in some cases the physician’s own judgement comes into play. Another respondent indicated it was fraud, without any provisos. In response to whether it was fraud to bill for individual psychiatric therapy while conducting group sessions, some stated it depended on whether it was done knowingly. One thought it was deceptive and inappropriate but was not sure it would met a judge’s standard of fraud.

3. Over-servicing/Unnecessary Services

   There were eight instances in British Columbia and four in Ontario of overservicing or unnecessary services. For example, Dr. Ara Artinian who administered anabolic steroids to his patients, was found to have billed for medically unnecessary services [183]. There were a number of cases that I found (not included in this analysis) where physicians performed unnecessary services but the billing aspect of the case was not discussed.

   When interviewees were asked a general question about whether billing for medically unnecessary service or over-servicing was fraud, some said it is very difficult to determine this or to see it as a criminal issue. In some cases, it is just poor judgement on the part of the physician and they should repay the MSP. Some physicians are just pushing the envelope in terms of giving their patients maximum care. Another respondent indicated it was fraud, without any provisos.

4. False Diagnosis

   To some extent, many of the billings for services not rendered could be considered a false diagnosis; however, this item was coded only when the false diagnosis was an issue in the proceedings. As such, false diagnoses (three instances in British Columbia and four in Ontario) can create serious problems. In addition to being a fraud on the public purse, it creates a medical record that may have negative consequences for the unsuspecting patient. For example, Dr. Alexander Victor Scott billed OHIP for “29 treatments for alcoholism, two treatments for a brain tumour, and five treatments for anxiety, hysteria and nervous exhaustion [on one patient]–none of which were ever requested or received [184].” After much effort, the patient managed to obtain an order from the Information and Privacy Commissioner ordering the Ministry to remove the false medical records from his file [185]. In another case, Dr. Ara Artinian was found by the College to have billed for sexual and psychological problems and assessments that his patients never had or discussed with him. He also billed for diagnosis such as asthma, dermatitis, vertigo, and low back pain–services which his patients denied receiving [186].

   When interviewees were asked a general question about whether stating a false diagnosis in order to bill for something that was done, but not covered, all stated that this was fraud; however, one had never seen such an event and added that physicians would simply get advanced approval to do such a thing.

5. Patterns of Practice

   Some legislation allows for recovery from doctors who exceed the patterns of practice in their cohort of doctors by a specified amount (five cases in British Columbia, one in Ontario). For example, Dr. Simon Wing Yip was found to have seen each of his patients an average of eight times a year when the average doctor saw patients only four times a year. Dr. Yip was seeing patients at twice the normal rate, and his visits per patient were more than two standard deviations from the average. On appeal, the British Columbia Supreme Court indicated that when the audit committee found “an unjustifiable departure from the patterns of practice of practitioners in the practitioner’s class” there was no finding of wrongdoing. “Doctors can choose to give exceptional care to their patients and the purpose of clause (a) is simply to place a limit on the amount that the Medical Services Plan is obliged to pay [187].” Sometimes a pattern of practice audit will lead to the discovery of up-coding or billing for services that were not rendered.

C. Amount in Issue

Where the information was available, the median amount in issue in British Columbia (N=19) was $216,164, and the median amount in Ontario (N=22) was $104,000. The mean (average) amounts were $297,558 in British Columbia and $421,844 in Ontario. Although British Columbia had five cases over $500,000, compared to Ontario’s four, Ontario had three cases of over $900,000 and British Columbia had none.

D. Administrative Proceedings

As shown in Table 5, information in the public domain indicated that administrative proceedings were conducted in 65% of the 31 British Columbia cases and in 35% of the 34 Ontario cases. This probably reflects the fact the administrative process in Ontario is more secretive than the process in British Columbia. Given Ontario’s position of zero tolerance, it is very likely that administrative actions were taken in close to 100% of the Ontario cases. There was insufficient data to do any further quantitative analysis of these cases.

E. SRO Proceedings

SRO proceedings were conducted in 35% of the British Columbia cases (N=11; nine by the College of Physicians and Surgeons) and 65% of the Ontario cases (N=22; all by the College of Physicians and Surgeons). Only two of the nine cases in British Columbia (22%) were by the College of Physicians and Surgeons in 2000 or later, compared to 15 of the 22 cases in Ontario (68%). The two later cases in British Columbia also involved criminal or quasi-criminal convictions. As was explained to me by the College of Physicians and Surgeons in British Columbia, the College usually leaves medicare fraud to the MSC and only examines the case if there is an issue of quality of service or if a criminal or quasi-criminal conviction leads to some question about the physician’s ability to deliver quality service.

The College of Physicians and Surgeons in British Columbia disciplined five doctors between 1990 and 1997 (when the government introducing BIP which took over the monitoring of medicare fraud). I could find no evidence in the public domain that these physicians were prosecuted in the criminal justice system. These five cases were examined to determine whether any conclusions could be drawn on the question of whether the SRO was funnelling in behaviour that was not suitable for the criminal justice system or whether the SRO was funnelling behaviour away from the criminal justice system. Dr. C. [188] made 32 “improper claims . . . for fees with respect to patients who had not received the service claimed. In the majority of cases he billed the Plan for office attendances when he had not seen the patients. In some cases he billed for office attendances when he had only spoken to the patients by telephone.” He promised to stop doing this after being confronted by his staff. Thirteen of the 32 claims took place after his staff confronted him. According to newspaper reports, Dr. L. billed MSP for sexual encounters with one of his patients, but did not record all of her visits on her chart. The issue of billing disappeared in the physician’s appeal to the British Columbia Supreme Court and Court of Appeal on the findings by the College of infamous and unprofessional conduct regarding the sexual encounters. Dr. H. was found guilty by the College of entering into financial relationships with his patients when they were incapacitated by the drugs he was prescribing to them. He also billed MSP for services that could not have been rendered, for example, removing tonsils from a person who had them removed 25 years earlier. Dr. T. billed the MSP for “approximately 150 instances where she had either performed no service or a service for which she was not entitled to bill the Plan.” Dr. F. billed MSP for services to family members which violated the physicians’ code of ethics, and he was required to repay the amounts. With the exception of the last case, it is difficult to see why these cases could not have been prosecuted in criminal or quasi-criminal proceedings. Once the College withdrew from enforcement of billing behaviour in 1998, the criminal justice system did not pick up the slack.

Five cases in Ontario resulted in a resignation or licence revocation by the College. Ten professionals were suspended from three to eighteen months (a mean of 7.5 months and a median of 5.5 months); however six of these had their suspensions reduced to 1-12 months if they fulfilled certain conditions. Seven professionals were fined from $3,000-$10,000 (a median of $5,000). Three were required to take remedial courses; two were subjected to inspections or oversight; and all 15 were reprimanded and ordered to pay costs ranging from $1,000-15,000 (mean $4,600; median $2,500). Only three decisions were appealed; results were against the professional in two cases and one was split as to which party was successful.

There were nine cases in Ontario where the College of Physicians and Surgeons disciplined doctors for inappropriate billing, but it appear as though no criminal charges were laid. In three cases the College found various violations of practice standards, but that there was insufficient evidence to establish that the physicians billed OHIP for services that were not performed or that the bills were false or misleading. In another case the physician had billed same day visits on different days, but had not billed for services he did not perform. In the remaining cases, the inappropriate billings seemed to be of less concern as the physicians were involved in other matters such as sexual abuse or sexual relations with patients, violating professional boundaries, and inappropriate prescription of drugs. In some cases the witnesses would probably not have stood up to cross-examination in the criminal justice system. In these cases, the SRO was probably funnelling in inappropriate billing behaviour that would not have been dealt with elsewhere. Unlike the College in British Columbia prior to 1997, the Ontario College of Physicians and Surgeons does not appear to be funnelling misconduct away from the criminal justice system.

F. Criminal and Quasi-Criminal Proceedings

In their efforts to reconcile two versions of law–“law as a fair and impartial arbiter of social conflicts; and law as one of the sites in society that reproduces gender, race and class inequalities [189],” Comack and Balfour examine how social-structural conditions (for example, neo-liberalism [190] and neo-conservatism) channel lawyers’ actions as they transform individuals charged with interpersonal violent offences into criminals. According to the authors, law is a “contested terrain on which various discourses operate to produce and reproduce certain claims to ‘truth [191].’” Lawyers develop their own characterizations of what they consider “normal crime [192]” which influence their case-building strategies. If offenders and their behaviour do not fit these images or scripts of normal crime, lawyers will use the psy professions’ discourse to explain the offenders’ behaviour.

The only professional that Comack and Balfour discuss is a middle-aged chiropractor who was charged with sexual assault and fraudulent billings. Defence counsel managed to have some charges dismissed because of lack of Crown disclosure; other charges were delayed because the accused suffered from a depressive disorder to the extent that he was unable to instruct counsel. Eventually, at the sentencing hearing, defence counsel relied on letters of community support and the devastating psychological and financial impact the case had had on the accused and his family. How one is psychologized in the criminal justice system may depend on one’s class. The sociopath is “uncaring, self-centred, irresponsible and manipulative;” however, for the professional “blameworthiness is ostensibly mitigated by the clinical depression brought on by the criminal proceedings [193].” Based on Mandel’s analysis of sentencing law in Canada, Comack and Balfour suggest that given the chiropractor’s conformity to the capitalist system as a social being, he requires and deserves lesser punishment [194].

Another factor that may be operating in how professionals are treated in the criminal and other justice systems is what Daniel calls scapegoating. Although professions are often accused of “looking after their own,” and they may actually do this, sometimes deviant members are “denounced, pilloried, and driven out” as a means of maintaining the integrity of the profession [195].

In examining the prosecution of health care fraud I have looked at how the lawyers and judges have characterized offenders and how the psy professions have been used to either assist (excuse) or vilify the accused. Three of the six prosecutions in British Columbia were against physicians (there were also charges against two physiotherapists and one optometrist). Fourteen of the 15 prosecutions in Ontario were against physicians.

1. British Columbia

   Dr. Richmond James Lee, who worked in Trail, British Columbia as a general practitioner and anaesthetist, was charged with fraud under section 380(1) of the Criminal Code and with knowingly making false documents under section 367(1). In 1985, he began billing MSP for more units of time than he actually worked and for services on people who were not his patients. Over four years he increased his billings by 40%, and defrauded the Medicare system of $261,687. At his sentencing hearing in 1992 following a guilty plea, the trial judge described the fraud as a gross violation of trust, but “as completely without sophistication [196].”

   A psychiatrist testified that Lee had significant stress in his life (marriage and work problems and a rebellious son) and that his emotional deficiencies led to “passive aggressive behaviour, i.e., the false billings.” The psychiatrist compared him to the “middle age shoplifters who have no apparent need or motive for their crime [197].” The judge pointed out that Lee would not benefit from his crime as the MSP was withholding 50% of his billings until the amount was repaid. According to the judge, personal deterrence was not an issue because the MSP “will watch him like a hawk for evermore [198].” Rehabilitation was not an issue because Lee had suffered humiliation and reprobation from his colleagues and the community. The judge stated that this type of fraud was “very rare in the medical community” and that no one would commit this crime if they were aware of the punishment Lee had “already suffered, let alone the further punishment he is facing.” The judge was also confident that the lenient sentence he was about to impose would not send a message to fraud artists outside the medical community: “Financial corporations and trust fund defalcations, as well as both welfare and unemployment insurance frauds are a [sic] the frequent subject of much publicity, and would-be perpetrators of those misdeeds should be guided by the consistent sentences meted out in those generic varieties of offences [199].”

   Although the Crown objected, the trial judge decided that it was appropriate to consider the impact on the community of Trail, which found it hard to attract specialists. Surgical specialists wrote letters exhorting the judge not to deprive the community of Lee’s services. The trial judge concluded that the sentence he imposed would bring the community into continuous awareness that Lee was being punished. He added, “It will be clear to all that white collar crimes are treated seriously, and its effects and results will be before the public for all to see [200].” Lee was sentenced to 90 days in jail (to be served on weekends), probation, and 500 hours of community service.

   An editorial in the Vancouver Province questioned whether the lenient sentence, which may have served the community of Trail by allowing Lee to work during the week, served the broader community. It added, “What about the father who commits a robbery? Should he be given a weekend sentence so he could keep his job and feed his family? . . . White collar crime is increasing in this country. Yet the perpetrators are often given treatment that would not be available to blue collar criminals [201].”

   Following his conviction, the College of Physicians and Surgeons found that Lee “had brought disgrace to the medical profession” and erased his name from the medical register [202]. The Registrar was quoted as saying that Lee could apply to have his name returned to the register, but he was wasting his time if he applied within a year [203]. Lee relocated to Bishop’s Falls, Newfoundland [204] and died on April 8, 2004 at the age of 67 [205].

   Dr. Pradeep Kurma Verma, a general practitioner who worked with drug addicts in Vancouver, was initially charged with 13 counts under the Narcotic Control Regulations for improperly prescribing codeine and eight charges of fraud under section 380(b)(ii) of the Criminal Code (fraud under $5000, a summary conviction offence) for submitting eight bills for $23.50 each, for services that were not rendered [206]. This case started as a drug investigation. Two undercover police officers posed as recovering drug addicts and Verma gave them prescriptions for codeine without proper inquiry. In addition to billing for these visits, Verma billed an additional eight visits that had not occurred. The accused pleaded guilty to an amended information which contained only one count related to codeine and one fraud count for $188.00. Defence counsel outlined the “incredible” personal and work stress that Verma was under, his depression, and hospitalization in a psychiatric ward following disciplinary action by the College (and around the time the fraud charges were laid) [207]. Although the judge expressed some misgivings about the leniency of the sentence proposed by the Crown and defence counsel for the fraud against Medicare, he followed their recommendation and imposed a $500 fine on each of the two counts [208].

   A Committee of the College of Physicians and Surgeons considered Verma’s convictions and also found that he had created a false medical chart for another patient and issued prescriptions under her name (for her husband) when she was not his patient. In addition, he fraudulently billed the Medical Plan for $164 for these phantom visits. The Committee found that after his activities came to light, Verma threatened the husband with physical harm, and the husband, in response, wrote a false statement to cover-up Verma’s fraud. The College Council erased Verma’s name from the register, and his appeal to the British Columbia Supreme Court was dismissed [209]. Verma moved to Waterloo, Ontario and practised medicine until his licence was suspended in 1996 following charges of sexual assault on patients and trafficking in narcotics. He was convicted of sexual assault in 1998, and his licence was revoked in 2001 by the College in Ontario [210].

   Dr. Paul Gerard Devlin, a psychiatrist [211] in Surrey, British Columbia, pleaded guilty to a lesser included offence under section 46(2) of the Medicare Protection Act (knowingly obtaining a benefit he was not entitled to–$93,000) and the Crown did not proceed with the charge of fraud under the Criminal Code. For five years (1993-1997), Devlin wrote letters to the MSP falsely indicating he had sufficient private medical income that entitled him to a larger fee. The Crown recommended a $100 fine, adding that Devlin would have to repay the amount he was not entitled to and was to be de-rolled for two months. The judge followed defence counsel’s recommendation of a discharge, giving Devlin a six month conditional discharge.

   The judge had asked for some precedents in terms of previous sentencing decisions from other courts which the defence and Crown seemed reluctant to provide, claiming that there were no equivalent decisions under section 64. Defence counsel stated: “there are a couple of Criminal Code convictions for fraud, very egregious cases, but none in these circumstances.” The judge asked for similar cases of billing that relied on trust, suggesting perhaps the Legal Aid system. Defence counsel suggested that a search would show “numerous cases” in which discharges were granted. The Crown made a passing reference to the fact that defence counsel (apparently known as “Mr. Fraud” for the numerous fraud cases he had defended) had dealt with some welfare fraud cases in the past, but this avenue for precedents was never pursued.

   After a one week adjournment, counsel returned with one unreported decision in which an employee of Canada Trust was given a conditional discharge for embezzling $130,000 from the account of a deceased. Ultimately, the accused doctor was given a six month conditional discharge. This case was concluded in 2001, and no reference was made to the Lee or Verma cases (both unreported) or any of the Ontario cases [212]. There is an argument that fraud cases under the Criminal Code may not be relevant for sentencing for a quasi-criminal provincial conviction. Devlin accepted a two-month de-enrollment from MSP (no payment for his services for two months) and was reprimanded by the College of Physicians and Surgeons. As of March 25, 2005, he is listed as the Medical Director of Psychiatry at Surrey Memorial Hospital [213].

   Mr. Milorad Stokic, a physiotherapist, was charged with 18 counts of fraud under section 380 of the Criminal Code and charges of dealing in forged documents. He pleaded guilty to four counts of fraud against MSP, the Insurance Corporation of British Columbia and Canada Life Corporation, and one charge of dealing in forged documents. Over a five year period, Stokic fraudulently obtained $35,000 from MSP and $45,000 from ICBC. With regard to MSP, he created false patient charts and billed for services that he did not deliver. He also created phantom patients and clinical records for real people who were not his patients. At his sentencing hearing in October of 1998, the trial judge heard Victim Impact Statements from ICBC and MSP. MSP stated that given the volume of claims they had to process, the system relied on trusting practitioners to bill honestly. Stokic filed a number of letters attesting to his good character that had what the judge called “a double-edged sword” as he “was able to conceal his criminal side so well that even those closest to him saw nothing untoward.” Given Stokic’s ability to deceive over a long period “reflects a man of some cunning.” Although he had a “solid reputation” in the community, the judge noted that he lived in a large, paid-in-full house while he was behind in child support payments to his former wife who had terminal cancer [214].

   In February of 1999, he was sentenced to 22 months imprisonment to be followed by two years probation. Stokic’s sentence appeal was dismissed, but the Court of Appeal deleted the part of the warrant of committal that stated the sentence was “to be served in an institutional setting,” in order to leave this issue to correctional authorities [215]. The College of Physiotherapists cancelled his licence [216]. In a separate action by ICBC, it was reported that Stokic agreed to repay ICBC $340,000 for exaggerated billing and for billing for services he did not perform [217].

   In November of 2001, Mr. Chi Chiu Chen, a physiotherapist, pleaded guilty to one count of defrauding the Insurance Corporation of British Columbia of $3,250.20 and one count of defrauding MPS of $32.50. The Crown proceeded by indictment and asked for a jail term of 18 months to act as a deterrent, but was not opposed to a conditional sentence with house arrest or curfew. Defence counsel argued that Chen had made “a very foolish error in judgment . . . and was remorseful.” He would have a criminal record for fraud, face professional disciplinary proceedings and a costly civil action by ICBC. The judge sentenced Chen to a $1,000 fine on the MSP count and six months conditional sentence with a curfew on the ICBC charge. He was also ordered to pay back the amounts set out in the indictment. Given that Mr. Chen’s financial circumstances would be “taxed considerably with everything going on in his life . . . arising from this matter” he was given until July, 2002 to pay the fine [218]. It was reported in the newspapers that ICBC sued Chen to recover $430,000 for submitting false claims to MSP which then billed ICBC [219].

   Dr. Michael Ing, an optometrist, pleaded guilty to defrauding MSP of $227,247 over a five year period. Ing billed for services he did not perform, for unnecessary tests, and for extensive testings when only brief examinations were conducted. Prior to his criminal sentencing, the Board of Examiners in Optometry fined him $3,000, ordered him to pay $110,000 in costs, and suspended him for 20 months (which was reduced to 2 months when he convinced the Board that his knowledge and record keeping were satisfactory) [220]. He had also made full restitution to MSP, but still owed the Board $59,000 in costs which he was paying at $2,000 per month. A pre-sentence report characterized Ing as a workaholic who supported his wife, children, mother, and brother, but the judge interpreted the report as saying that Ing “came to remorse late” and lacked “depth of insight” into his behaviour. The judge took into account the fact that Ing had been “punished in two other forums.” In addition to the sanctioning by the Board, MSP banned him from billing for five years. She writes, “it has been noted in many other cases that, particularly in the case of professionals or individuals who are known to their community, that such punishment by way of publication or other fines and consequences are factors to be taken into account in sentencing [221].” Ing was given a two year less a day conditional sentence, six months house arrest (except for working hours and community service), ordered to perform 72 eye examinations as part of a community service order, and 18 months probation following the conditional sentence.

   Plea negotiations figured prominently in all six prosecutions. In some cases the facts before the sentencing judge were substantially less serious than what the media reported as the original allegations. In two cases, the amounts reported as recovered during civil proceedings were substantially higher than the amounts that were the subject of the criminal charges. With one exception (Stokic) the professionals appeared to benefit from their social and economic location, some with the help of the psy professions.

   Two of the three physicians who were convicted in British Columbia had received their medical training outside of Canada (India and Ireland), as had the physiotherapist (Yugoslavia, with upgrading in Canada). There was no indication where the two optometrists were trained; however, both have names that would indicate they may be members of a visible minority, and one had his picture in a newspaper which would confirm this. It is difficult to determine whether this indicates scapegoating in action or not.

2. Ontario

   Of the 15 professionals charged in Ontario (14 physicians and one chiropractor), charges were stayed against two, and one was found guilty of defrauding Workers Compensation, but not guilty of OHIP fraud. Of the 12 who were convicted, nine were heard in provincial court and three in superior court. All 12 pleaded guilty. The convictions were all under the Criminal Code, except for one. Dr. Sarah Paikin, a Hamilton physician, was initially charged with fraud under the Criminal Code, but these charges were withdrawn when she pleaded guilty to an offence under section 44 of the Health Insurance Act. She had billed OHIP for $10,628.76 for psychotherapy services that she was not entitled to bill under the Schedule of Benefits. She was required to repay the plan and was fined $5,000, the maximum fine under the legislation. She was also required to pay a surcharge of $1,250 [222]. The College of Physicians and Surgeons then, recognizing “that this was a case of failing to exercise due diligence, and not a case involving fraudulent intent,” reprimanded her and ordered her to pay a fine of $3,000 to the Minister of Finance and $2,500 to the College for costs [223].

   Three of the 12 professionals served time in jail or prison. In 1991, Dr. Louis Stephen O’Connell, a family physician, pleaded guilty to defrauding OHIP of $100,000. Apparently his behaviour was discovered because some days he billed for more hours than there were in a day [224]. O’Connell was sentenced to reimburse OHIP, spend 89 days in jail (to be served on weekends), complete 250 hours of community service, and serve two years probation. The College reprimanded him and ordered him to pay a fine of $5,000 to the Minister of Finance. He was also suspended for 180 days, but 120 would be remitted if he paid the fine and costs of $5,000 within 30 days and performed 45 hours of community service at an AIDS hospice [225].

   Dr. Alexander Victor Scott, a general practitioner in the Kingston area who made house-calls to shut-ins and the elderly, pleaded guilty to defrauding OHIP of $586,924.59 between 1992 and 1999. Although there was a Order of Forfeiture for some of his retirement savings because they were obtained as part of an enterprise crime offence, “charges of money laundering and profiting from the proceeds of crime were dropped as part of Scott’s plea bargain [226].” Scott had billed for fictitious appointments with some patients and fabricated procedures on patients he did see. For example, Scott would give a patient a flu shot and bill for a psychotherapy session (also see the earlier discussion under False Diagnosis). Despite the fact that Scott indicated that he had neglected his financial affairs because of his addiction to prescription drugs, following his rehabilitation programme in 1995 he continued fraudulent billing because of his debt load. On May 8, 2000, the judge followed a joint submission by Crown and defence counsel and sentenced Scott to 30 months in prison [227]. He was released on supervised parole on March 8, 2001 [228]. On March 27, 2002, the College reprimanded Scott, revoked his Certificate of Registration, and ordered him to pay $2,500 in costs [229].

   On September 11, 2000, Dr. Michael Charles Bogart pleaded guilty to defrauding OHIP of $923,780.53 over a period of seven years (see earlier discussion under Billing for Services not Provided). Although of the view that such a crime warranted a five year penitentiary sentence, the trial judge considered “the accused’s background, his present status, his remorse, his continued service to his patients and his guilty plea” and sentenced him to two years less a day to be served in the community, three years probation, and restitution [230]. On appeal by the Crown, the Ontario Court of Appeal found that the sentence was “demonstrably unfit.” While ordinarily such a crime would call for a four-year penitentiary term, given the mitigating circumstances the court imposed an 18 month sentence in jail [231]. An application for leave to appeal to the Supreme Court of Canada was denied [232]. Following his conviction, the College of Physicians and Surgeons rejected Bogart’s argument that the commission of fraud was irrelevant to his suitability to practise medicine, as “trust and integrity are fundamental to the agreement between the physician and OHIP in a fee-for-service arrangement and are fundamental in the relationship between physicians and patients.” The College reprimanded Bogart, suspended him for 18 months (six months to be suspended if Bogart met a number of conditions), imposed terms on his Certificate of Registration, and ordered him to pay costs of $15,000 [233]. As of April 25, 2005, Bogart does not appear on the College’s registrar.

   Three of the 12 professionals served conditional sentences of imprisonment (this means the sentence of imprisonment was served in the community). Dr. Donald MacDiarmid, a general practitioner in Ajax, Ontario, pleaded guilty to defrauding OHIP of $155,675 under section 380(1)(a) of the Criminal Code and was sentenced to an 18 month conditional sentence, two years probation, a fine of $100,000 and 150 hours of community service. On appeal, the fine was deleted as sentencing an accused to imprisonment and both probation and a fine was found to be illegal [234]. The College suspended MacDiarmid for five months, required him to undergo intensive psychotherapy, ordered him to pay $1,000 in costs, and prohibited him from submitting accounts to OHIP for a period of three years following his suspension. On appeal, the Ontario Superior Court of Justice decided that the College had the power to prohibit MacDiarmid from submitting accounts to OHIP and that its decision was reasonable [235].

   In 2001, Dr. Miles Moore pleaded guilty of defrauding OHIP of $75,000 under section 380(1)(a) of the Criminal Code. He was sentenced to a 15 month conditional sentence with a curfew from 9:00 p.m. until 6:00 a.m., followed by three years of probation, and he was ordered to pay $75,000 in restitution [236]. The College reprimanded him, suspended him for 12 months, and ordered that he pay a fine of $5,000 and costs of $2,500. Six months of the suspension would be suspended provided he paid the fine and costs within six months of the date of suspension [237]. Moore met the conditions to reduce his suspension to six months, but appealed the College’s decision arguing that the Committee had not adequately considered the principle of proportionality and had overemphasized the concept of general deterrence in its decision in that it quoted the following from a previous decision: “The Committee hopes that the penalty imposed by this committee will serve as an appropriate general deterrent and convey the message that health care fraud is a serious and escalating problem, which will not be tolerated by the medical profession in Ontario.” It then added, “the Committee is concerned that this message may not be getting out to the members of the College, as the incidence of health care fraud continues to be significant [238].” The Ontario Superior Court of Justice dismissed Moore’s appeal finding that the Committee’s decision was “a measured response to what appears to be a continuing and an escalating problem in the medical profession [239].”

   Dr. Gustavo Tolentino pleaded guilty to defrauding OHIP of $58,120.40 under section 380(1)(a) of the Criminal Code on October 25, 1999. He was sentenced to a 12 month conditional sentence and ordered to pay restitution [240]. On February 28, 2002, the College, after “seriously considering revocation as an appropriate penalty” recognizing that “the scale of fraud in this case is in the lower range when compared to other cases,” reprimanded Tolentino and suspended him for four months [241].

   Of the remaining six professionals convicted of an offence, two were fined $5,000 each, three were placed on probation, and one was given a discharge.

   Country of training was available for 11 of the 12 convicted professionals, and only two of the 11 had received their training outside of Canada. Surnames of the professionals do not indicate over-representation from any minority group such that they may have been targeted for scapegoating.

[173] It is not clear whether this is because few are dismissed or because those that are dismissed are usually not in the public domain.

[174] Editorial, (14 August 2002) Ottawa Citizen A14.

[175] Search conducted on September 26, 2004. Not all of these physicians would work on a fee-for-service basis, but it does give some indication of the percentage of psychiatrists in Ontario today.

[176] Stephen M. Rosoff, Henry N. Pontell and Robert H. Tillman, Looting America: Greed, Corruption, Villains and Victims (New Jersey: Pearson Education Inc., 2003) at 364.

[177] Statistics Canada, Occupation 2001 National Occupational Classification, Canada, Total Labour Force (Catalogue number 97F0012XCB01017).

[178] Search conducted on September 26, 2004. Not all of these physicians would work on a fee-for-service basis, but it does give some indication of the percentage of women doctors today. The British Columbia College of Physicians and Surgeons’ database that contained 9799 doctors on January 25, 2005, cannot be searched by gender.

[179] Canadian Institute of Health Information, “Average Age of Physicians by Physician Type and Province/Territory, Canada, 1998 and 2002;" secure.cihi.ca/cihiweb/en/AR14_2002_tab2_e; accessed October 2, 2004.

[180] Nine of the eleven SRO proceedings in British Columbia were by the College of Physicians and Surgeons.

[181] In January, 2005, I was able to add seven administrative cases to the database which had been posted on the Cory Review website.

[182] Rick Ouston, “Controversial Doctor Faces Possible Loss of Privileges” (24 November 1998) Vancouver Sun A3.

[183] College of Physicians and Surgeons of Ontario v. Artinian, [1992] O.C.P.S.D. No. 11 at para 34.

[184] Louise Elliott. “Ontario Needs Standards for Faulty Medical Files: Privacy commissioner” (21 March 2001) Canadian Press Newswire.

[185] Order PO-1881-1 (Institution: Ministry of Health and Long-Term Care), [2001] O.I.P.C. No. 55.

[186] College of Physicians and Surgeons of Ontario v. Artinian, [1992] O.C.P.S.D. No. 11 at para 34.

[187] Yip v. Audit Committee, Medical Services Commission (unreported) January 26, 1993, B.C. Supreme Court, Vancouver Registry, No. A924879 at 13-14.

[188]I have used initials here because these doctors were not charged or convicted with a criminal offence, but I have assessed the facts as they appear in the College proceedings. Had these cases gone through the criminal justice system, the doctors may have been acquitted.

[189] Comack and Balfour, The Power to Criminalize at 10.

[190] For example, neo-liberalism, which shifts the government’s focus from social welfare and collective values to the privatization of responsibility, has an impact on lawyers’ case-building strategies; Comack and Balfour at 41-42; also see Wendy Larner, “Neo-Liberalism: Policy, Ideology, Governmentality” (2000) 63 Studies in Political Economy 5.

[191] Comack and Balfour, The Power to Criminalize at 31. David Sudnow, “Normal Crime: Sociological Aspects of the Penal Code” in E. Rubington and M. Weinberg (eds.), Deviance the Interactionist Perspective (London: Macmillan, 1968).

[192] Comack and Balfour, The Power to Criminalize borrow this concept from David Sudnow, “Normal Crime: Sociological Aspects of the Penal Code” (1965) 12 Social Problems 255. The man who kills his mother and the violent woman are examples of offenders who do not fit normal crime scripts; Comack and Balfour at 59-61, 137, and 144.

[193] Comack and Balfour, The Power to Criminalize at 144.

[194] Comack and Balfour, The Power to Criminalize at 143 referring to Michael Mandel, “Democracy, Class and Canadian Sentencing Law” in E. Comack and S. Brickey (eds.), The Social Basis of Law: Critical Readings in the Sociology of Law (Halifax: Fernwood, 1991).

[195] Daniel, Scapegoats at 1-3. Although one usually thinks of marginal professionals suffering the effects of scapegoating, Daniel purposely focussed on “practitioners of distinction” in her study.

[196] R. v. Lee (unreported) January 27, 1992, B.C. Provincial Court, Rossland, British Columbia, No. 11480 at 1.

[197] Lee at 2-3.

[198] Lee at 3.

[199] Lee at 3-4.

[200] Lee at 6.

[201] Editorial. (30 January 1992) Vancouver Province A40.

[202] College of Physicians and Surgeons of British Columbia, 1993 Annual Report (Vancouver: College of Physicians and Surgeons, 1993) at 16.

[203] Gordon Clark, “Trail Laments Losing Banned Doctor” (1 April 1992) Vancouver Province A4.

[204] The CPSBC recorded this new address as of 1996, but it is not clear when he moved.

[205] “Obituary: Remembering Richmond James Lee” www.hoskinsfuneralhomes.com; accessed March 27, 2005.

[206] Information Number 64501, dated May 27, 1993.

[207] R. v. Verma (unreported) May 6, 1994, B.C. Provincial Court, Vancouver, British Columbia, No. 64501C at 8-10.

[208] R. .v. Verma (unreported) May 9, 1994, B.C. Provincial Court, Vancouver, No. 64501C at 1.

[209] Verma v. College of Physicians and Surgeons of British Columbia, [1994] B.C.J. No. 2701.

[210] College of Physicians and Surgeons v. Verma, [2001] O.C.P.S.D. No. 27. The delay by the College was criticized in the news media; see Robert Cribb, “Doctor Loses Licence a Second Time: Earlier Convicted of Fraud in B.C. Sex Charges Lead to End of Practice” (7 June 2003) Toronto Star A4; Editorial. (10 June 2003) Toronto Star A22.

[211] Throughout the relevant time, Devlin, who was trained as a psychiatrist in Ireland, was on the British Columbia College’s Temporary Register because of his inability to pass the required examinations; Devlin v. The College of Physicians and Surgeons, [2000] B.C.J. No 1730 (B.C.S.C.); appeal by Devlin dismissed [2002] B.C.J. No 1612 (B.C.C.A.).

[212] R. v. Devlin, (unreported) May 9 and May 15, 2001, B.C. Provincial Court, Port Coquitlam, British Columbia, No. 61170-01.

[213] College of Physicians and Surgeons, Physicians Directory; www.cpsbc.ca/ accessed January 30, 2005.

[214] Stokic at para. 36-37.

[215] R. v. Stokic, [1999] B.C. J. No. 1312.

[216] College of Physical Therapists of British Columbia, “Discipline Panel Decision” (Winter 2000) Update www.cptbc.org/newsletter.htm.

[217] Clare Ogilvie, “Swindler to Pay” (31 December 1999) Vancouver Province A34; David Hogben, “Physiotherapist to pay ICBC $340,000" (30 December 1999) Vancouver Sun B4. This case illustrates the problems of relying on newspaper reports for information. It was reported that Stokic “was jailed for defrauding ICBC of more than $300,000" when in fact the criminal charge was for defrauding ICBC of $45,000; Adrienne Tanner, “Physiotherapist admits $430,000 fraud on ICBC” (9 November 2001) at C4 (this article was about Chen, but then also made reference to Stokic).

[218] R. v. Chen, (unreported) November 5 and 20, 2001, Provincial Court of British Columbia, Vancouver, British Columbia, No. 115882-1.

[219] Tanner at C4.

[220] BC Board of Examiners in Optometry, “Discipline Hearing of Dr. Michael Ing” (February, 2001) The Examiner 1; R. v. Ing, [2001] B.C.J. No. 2855 (BC Provincial Court) at 13.

[221] Ing at para. 21.

[222] R. v. Paikin, (unreported) January 16, 2001, Ontario Court of Justice, Toronto (Metro North).

[223] College of Physicians and Surgeons of Ontario v. Paikin, [2003] O.C.P.S.D. No. 36.

[224] Sean Upton, MD Jailed for Bilking Health Plan” (1 September 1991) Ottawa Citizen A6.

[225] College of Physicians and Surgeons of Ontario v. O’Connell, [1994] O.C.P.S.D. No. 5. The transcripts from the criminal trial were no longer available, as the provincial division of the court retains them for only six years; email Tricia Doran, Client Service Representative, Court Support Office, Ottawa to Joan Brockman, March 12, 2004.

[226] Annette Phillips, “MD Gets Ban for Life in $592K Fraud Case: College Hands Alex Scott Harshest Punishment Ever for Bilking Health System” (3 April 2002) Kingston Whig-Standard 1. Also see R. v. Scott (unreported) May 8, 2000, Ontario Court of Justice, Kingston, Ontario at 8.

[227] R. v. Scott (unreported) May 8, 2000, Ontario Court of Justice, Kingston, Ontario.

[228] Annette Phillips, “Island Doctor May Lose Licence” Disciplinary Committee Hears from Dr. Alex Scott” (31 August 2001) Kingston Whig-Standard 1.

[229] College of Physicians and Surgeons of Ontario v. Scott, [2002] O.C.P.S.D. No. 4.

[230] R. v. Bogart, [2001] O.J. No. 2323 at paras. 16-18. The conditional sentence included 100 hours of community service.

[231] R. v. Bogart (2002), 167 C.C.C. (3d) 390 at paras. 41-42.

[232] R. v. Bogart, [2002] S.C.C.A. No. 398.

[233] College of Physicians and Surgeons of Ontario v. Bogart, [2001] O.C.O.S.D. No. 9 at paras. 5 and 26.

[234] R. v. MacDiarmid, [2001] O.J. No. 243 (Ontario Court of Appeal).

[235] MacDiarmid v. College of Physicians and Surgeons, [2003] O.J. No. 277.

[236] Since I did not have the judge’s or the reporter’s name in this case, the court staff were unable to trace the reporter so that I could obtain transcripts for this case. However, as of April 25, 2005, it appears as though I may be able to trace the reporter.

[237] College of Physicians and Surgeons of Ontario v. Moore, [2002] O.C.P.S.D. No. 5.

[238] Moore, 2002 at paras. 9-10; Moore v. College of Physicians and Surgeons, [2003] O.J. No. 5200 (Ontario Superior Court of Justice) at paras. 4-5.

[239] Moore, 2003 at 12.

[240] Since I did not have the judge’s or the reporter’s name in this case, the court staff were unable to trace the reporter so that I could obtain transcripts for this case. However, as of April 25, 2005, it appears as though I may be able to trace the reporter.

[241] College of Physicians and Surgeons v. Tolentino, [2002] O.C.P.S.D. no. 2 at paras. 10 and 13.