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A Senseless Fraud Prosecution Victimized Doctor And Patients

In the complicated world of medical and dental care, billing mistakes happen. Add a complicated government program such as Medicaid, and they are practically inevitable.

Yet a New Hampshire dentist recently discovered that mistakes involving Medicaid are not just mistakes: According to the state attorney general’s office, they are always fraud.

Dr. Nicholas Marshall found himself facing over 200 charges from the attorney general’s Medicaid Fraud Control Unit, some of which involved amounts as small as $5. According to the New Hampshire Union Leader, Marshall offered to refund the entire disputed amount of the alleged fraud, which came to $781, in order to make the indictments go away. Yet prosecutors insisted that wasn’t good enough; Marshall also needed to plead guilty, which he refused to do.

The case went to trial, where a jury found Marshall innocent of all 45 felony counts that had not been previously dropped. The foreman later described most of the jurors as “appalled at the state for bringing [the] case.” New Hampshire Attorney General Joseph Foster acknowledged that the law that classifies every case of alleged Medicaid fraud, regardless of the amount, as a felony may need to be changed. Yet Foster defended prosecutors who pursued Marshall, saying that they felt the indictments were necessary.

This is not the first time prosecutors have overstepped the bounds of law, reason or ordinary sense, nor the first time I have written about it. There are plenty of examples. While the conduct of New Hampshire prosecutors does not rise to the level of a potential crime - they did not, for example, withhold exculpatory evidence - that does not mean there is nothing more to be done about it.

At a minimum, this incident ought to warrant a state bar investigation for subjecting Marshall to a felony fraud prosecution, exposing him to decades of jail time (the Concord Monitor reported he could have technically faced over 1,300 years in prison had all the charges remained in effect), pressuring him to cop a plea to a crime he clearly did not commit, and abusing a poorly drafted statute to create a “felony” out of a billing dispute worth less than $800. Marshall contends that the indictments all came without any warning, and has described the financial and emotional impact of the case.

“It’s indescribable, the emotional toll it takes on you,” he said. “They don’t call to say ‘Hey, we think you overcharged’ and ‘Repay us,’ they indict you.”

Throughout the process, Marshall’s attorney, Jim Moir, maintained that even if Medicaid was right to dispute the bills in question, a mistake in navigating the complexities of the Medicaid bureaucracy is not the same thing as fraud, which requires an intent to steal. While this seems obvious to any reasonable observer, logic eluded the prosecutors who pressed Marshall to plead guilty all the same.

Marshall has returned to his dental practice (after having been suspended while the bogus charges were pending), but he understandably no longer accepts Medicaid patients. This goes to show that the dentist is not the only victim of this ill-founded prosecution. It is not easy, even in large cities, to find dentists who are accepting new Medicaid patients. In small-townish New Hampshire it can be even harder, so the patients Marshall no longer accepts may have to wait longer for care, or do without.

State and federal prosecutors don’t seem inclined to stop chasing headlines any time soon, however. While juries can still make sure such efforts don’t put people in jail wrongfully, that outcome is only possible after large expenditures of time and money.

New Hampshire Gov. Maggie Hassan, a Democrat who expanded Medicaid in the state, also “believes that we must be vigilant about stopping fraud in any public program,” according to a statement delivered by her press secretary. When prosecutors interpret that belief as a mandate to go after perceived fraud - in any amount and without evidence of intent to defraud - we end up with absurd cases such as the one against Marshall.

If the legal profession cared about protecting the public as much as it cares about protecting its own members, the attorneys who brought this senseless case would find themselves in another line of work, at least for a suspension period, if not permanently. Future prosecutors might then exercise a little more of what they like to call "prosecutorial discretion."

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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