UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JASWINDER RAI CHHIBBER, Defendant-Appellant.
No. 12-2728
United States Court of Appeals For the Seventh Circuit
ARGUED APRIL 11, 2013 — DECIDED FEBRUARY 3, 2014
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:11-CR-00119-1— Suzanne B. Conlon, Judge.
ROVNER, Circuit Judge. Dr. Jaswinder Rai Chhibber was charged with eight counts of making false statements relating to health care matters, in violation of
I.
Chhibber was an internist who operated the Cottage Grove Community Medical Clinic (hereafter the “Clinic“), a walk-in medical office on the south side of Chicago. For patients who had insurance or were covered by Medicare, Chhibber ordered an unusually large volume of diagnostic tests, including echocardiograms, electrocardiograms, pulmonary function tests, nerve conduction studies, carotid Doppler ultrasound scans and abdominal ultrasound scans. Chhibber owned the equipment to perform these tests and his staff performed them at the Clinic according to his orders. The government asserted that Chhibber obtained reimbursements for the tests from insurers by presenting claims that contained false and misleading diagnostic codes to justify the tests. He also supported the claims by recording fake symptoms and sham diagnoses in his patients’ medical charts.
At trial, the government presented witnesses who had worked for Chhibber, patients who saw him, and undercover agents who presented themselves to the Clinic as persons needing medical services. This testimony revealed that Chhibber was in the habit of ordering diagnostic tests for his patients regardless of any symptoms they exhibited or reported. Chhibber‘s former employees testified that he often ordered tests before he even arrived at the office, based on phone calls with staff in which he inquired about little more than the names of the patients’ insurers and when the patients had last been given tests. The employees performed the tests
The government also presented testimony from an internist, Dr. Daniel Herdeman, and from two statisticians.1 The government initially sought to qualify the statisticians as experts, and sought to introduce charts demonstrating that Chhibber performed various tests on his patients with much greater frequency than other internists in the same geographical area. Chhibber objected to qualifying the statisticians as experts and also objected to the admission of charts comparing the frequency of Chhibber‘s testing to the frequency of testing by his peers. He contended that the statisticians had used a peer group that was not truly comparable because they had not
But the court did allow the statisticians to present summary charts containing only the percentages of Chhibber‘s patients who received certain tests or diagnoses, without any comparison to a peer group. Exhibit 801X portrayed the percentage of Chhibber‘s patients who were insured by Blue Cross Blue Shield of Illinois and who received (1) a carotid Doppler (60.47%); (2) a transcranial Doppler (38.74%); (3) an electrocardiogram (34.55%); (4) an echocardiogram (55.50%); (5) a nerve conduction study (18.32%); (6) a pulmonary function test (59.69%); and (7) an abdominal ultrasound (46.07%). A corresponding chart, Exhibit 803X, showed the percentage of Chhibber‘s Blue Cross patients receiving particular diagnoses: (1) cardiac murmurs (63.09%); (2) shortness of breath and chest pain (62.04%); and (3) hypertension (33.51%). Similar charts were entered into evidence for patients of Chhibber who were covered by Medicare. Exhibit 806X revealed that large numbers of Chhibber‘s Medicare patients received (1) a carotid Doppler (64.79%); (2) a transcranial Doppler (30.75%); (3) an electrocardiogram (48.59%); (4) an echocardiogram (62.68%); (5) a nerve conduction study (21.13%); and (6) a pulmonary function test (73.24%). Exhibit 808X portrayed the percentage of Chhibber‘s
Chhibber objected to the introduction of these four exhibits on the grounds that they were prejudicial and irrelevant. He protested that it was improper for the government to argue that a high percentage for a particular procedure or diagnosis implied fraud unless someone testified that the number was comparatively high, and that the jury could not know what the raw numbers meant without an appropriate comparison. He also contended that the percentages distorted reality because they were calculated on a per patient basis rather than a per visit basis. Such an assessment did not account for occasions where a single patient came in for twenty or thirty visits and received only one test. The court overruled the objection and allowed the charts to come in under
II.
On appeal, Chhibber contends that the trial court improperly admitted the four exhibits described above. He also argues that the government should have been required, as a matter of law, to present expert testimony that the treatment Chhibber provided was medically unnecessary. Finally, he contends that the cumulative effect of the trial court‘s errors deprived him of the right to a fair trial.
We review the court‘s decision to admit or exclude evidence for abuse of discretion. United States v. Simon, 727 F.3d 682, 696 (7th Cir. 2013); United States v. Thornton, 642 F.3d 599, 604 (7th Cir. 2011). See also United States v. Isaacs, 593 F.3d 517, 527 (7th Cir. 2010) (reviewing a district court‘s decision to admit summary charts into evidence under Rule 1006 for abuse of discretion). Chhibber contends that, once the district court properly excluded the proposed peer group evidence, the remaining charts showing how often Chhibber performed certain tests and made particular diagnoses were irrelevant and prejudicial. Without a point of comparison, Chhibber maintains that the jury had no basis for inferring fraud from these numbers. He also complains that the numbers were misleading because they were calculated on a per-patient basis rather than a per-visit basis. The numbers were prejudicial, he claims, because the government argued that his testing numbers were so high that they reflected an “impossible volume” without giving the jury anything to compare them to. Finally, he contends that the statistics were the sole basis for any claim of Medicare fraud against him because no Medicare patients testified at trial. The numbers alone, he maintains, must have been prejudicial because there was no other basis on which to convict him of Medicare fraud.
The district court did not abuse its discretion in admitting these four summary charts. First, we note that Chhibber does not contend that the numbers were anything other than an accurate summary of his billing and medical records. That is, the charts accurately portrayed the data culled from his records, and were not misrepresented to the jury as anything
More importantly, there was evidence in the record that provided a point of comparison for the jury. Although the government‘s peer group statistics were excluded because the court found that the government‘s proposed peer group was not comparable, the government presented the testimony of Dr. Herdeman, an internist who was qualified as an expert in the field of internal medicine and diagnosis. R. 249, Tr. at 384. Chhibber reserved his right to object to Dr. Herdeman‘s expertise “as to the giving of tests,” but subsequently he did not object to extensive testimony by Dr. Herdeman regarding how often an internist encounters patients with the conditions diagnosed by Chhibber and how often an internist typically orders the tests performed by Chhibber.
Dr. Herdeman‘s testimony provided an ample basis for the jury to evaluate the statistical summaries. Dr. Herdeman is a board certified internist who had been practicing medicine in a variety of settings for twenty-nine years at the time of the trial. He had worked for approximately fourteen years at the Swedish American Medical Group in Rockford, Illinois, serving a population that included both middle class and
Dr. Herdeman testified that echocardiograms, electrocardiograms, carotid Doppler scans, transcranial Doppler scans, pulmonary function tests, and nerve conduction studies are not routine screening procedures but are specialized tests performed by persons with special training. Dr. Herdeman stated that a doctor would not order any of these specialized tests without examining a patient because only certain conditions would justify performing each test. Based on his training and experience, he expected that an internist would order (1) one or two echocardiograms per month; (2) approximately one or two electrocardiograms per week, or approximately 2% to 5% of his total patient population; (3) ten to fifteen carotid Doppler scans per year; (4) ten to twelve pulmonary function tests per year; and (5) five to eight nerve conduction studies per year. Dr. Herdeman had never ordered a transcranial Doppler scan because none of his patients had ever needed one. In his experience in working with older patient populations and
The government also questioned Dr. Herdeman about Chhibber‘s patient progress notes for the patients where fraud was alleged. Dr. Herdeman testified that the notes did not contain the information that he would expect to find for persons given the diagnoses that Chhibber assigned to these patients. For example, for a patient with a heart murmur, Dr. Herdeman expected to see answers to a number of questions
B.
Chhibber next argues that the government should have been required to present expert testimony to prove that the tests he provided were not medically necessary and that his diagnoses were incorrect. He asserts that the question of whether expert testimony is required to sustain a conviction for the provision of medically unnecessary care under
Chhibber was convicted of four counts of false statements under section 1035, and five counts of health care fraud under section 1347. Section 1035 provides, in relevant part:
Whoever, in any matter involving a health care benefit program, knowingly and willfully… (2) makes any materially false, fictitious, or fraudulent statements or representations, or makes or uses any materially false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, in connection with the delivery of or payment for health care benefits,
items, or services, shall be fined under this title or imprisoned not more than 5 years, or both.
Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program,
in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.
Although neither statute refers expressly to the provision of medically unnecessary treatment, the indictment charged that Chhibber violated these statutes by ordering medically unnecessary tests for patients covered by health care benefit programs and then recording false diagnosis codes in those patients’ charts and on reimbursement claim forms in order to
We need not decide as a matter of law whether expert testimony is required on the issue of medical necessity because the government did in fact provide expert testimony from Dr. Herdeman regarding what conditions justified particular tests. Dr. Herdeman testified that each test at issue was not a general
And there was ample evidence from the patients and undercover officers that the patients did not report the symp-
As for the section 1035 claims, Chhibber documented these made-up medical symptoms and diagnoses in his patients’ charts in order to backstop his claims for benefits from Blue Cross Blue Shield. United States v. Natale, 719 F.3d 719, 742 (7th Cir. 2013), petition for cert. filed, — U.S.L.W. — (Dec. 20, 2013) (No. 13-744) (setting forth the elements that must be proved for a conviction for false statements relating to health care matters under section 1035(a)(2)). For the agents mentioned above, Chhibber recorded shortness of breath when the agent was not suffering from and had not reported shortness of breath. Chhibber recorded syncope (fainting) and collapse for a different agent who was not suffering from and had not reported these symptoms. For the twenty-eight year-old woman, he recorded chest pain, dizziness and shortness of breath in her chart when she neither reported nor exhibited these conditions. The evidence was similar on the other counts of conviction. Deciding whether to credit simple factual testimony from these witnesses, testimony that conflicted with Chhibber‘s written records, required no expert testimony and was well within the province of the jury. On appeal, we do not reweigh the evidence or assess witness credibility. United States v. Wasson, 679 F.3d 938, 949 (7th Cir. 2012), cert. denied, 133 S. Ct. 1582 (2013). See also United States v. Carraway, 612 F.3d 642, 645 (7th Cir. 2010), cert. denied, 131 S. Ct. 1025 (2011) (credibility determinations are best handled by the trier of fact, not the appellate court). This evidence was more than sufficient to sustain the convictions on the section 1035 counts.
III.
Given that there were no errors in the district court‘s rulings, we need not consider Chhibber‘s claim of cumulative error. We have reviewed his other claims and find no merit in them. In sum, the court did not err in admitting charts that accurately summarized voluminous records, records that were relevant to the government‘s case. We need not decide whether
AFFIRMED.