PSR Annual Report 2008-09

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3. Case descriptions

PSR Committees

Section 93 of the Health Insurance Act 1973 refers to cases where the Director has established a PSR Committee to further investigate the person under review. This year 14 final determinations were made relating to Committee cases; seven are described below. The final determinations in the remaining seven cases became effective in July 2009 and will be described in PSR’s 2009–10 Annual Report.

In a further two cases, final determinations made in 2007–08 became effective in August 2008 and are included in the descriptions below.

Dr Boguslaw Stanislaw Bartos
General practitioner
Green Valley, New South Wales

On 13 December 2001 Medicare Australia (then the Health Insurance Commission) made an investigative referral to PSR. The effect of this was to refer the conduct of Dr Bartos in connection with his provision of services between 1 January and 4 September 2000.

Medicare Australia was concerned that, based on the evidence available to it, Dr Bartos may have engaged in inappropriate practice in that professional attendances he had rendered during the relevant period may have amounted to a prescribed pattern of services (that is, the 80/20 rule).

The Acting Director invited Dr Bartos to make a submission. In his submission, Dr Bartos said he worked on Mondays and Wednesdays for 14 or 15 hours. He also said he could change his working hours, to extend over five days, to accommodate his patients but chose not to do so; many patients willingly waited up to 4 hours to see him.

At this time there was no evidence of exceptional circumstances and Dr Bartos was referred to a PSR Committee.

Dr Bartos submitted to the Committee that exceptional circumstances applied on each of the 27 days on which he rendered 80 or more professional attendances. The issues affecting his practice on those days were:

The Committee did not accept that the age profile of his patients was an exceptional circumstance, but rather an ongoing foreseeable circumstance common to a growing suburban area. While the Committee acknowledged the problems Dr Bartos experienced in recruiting doctors to meet the demand, it did not consider it amounted to exceptional circumstances. The Committee also did not accept that Dr Bartos’ work pattern was an exceptional circumstance; it was his choice not to work everyday.

The Committee’s final report, dated 14 November 2002, contained a finding of inappropriate practice. This finding was

based on its conclusion that Dr Bartos’ conduct in connection with rendering professional attendances on 27 days during the relevant period constituted a prescribed pattern of services and that exceptional circumstances did not affect his rendering of serviced on any of those days.

Dr Bartos challenged that report in the Federal Court. The court found that the Committee had erred in its interpretation of the Health Insurance Act 1973 in making the finding of inappropriate practice. On 19 April 2006 the court remitted the matter back to the Committee to determine it according to law.

After conducting further hearings and considering submissions the Committee again made a finding of inappropriate practice.

The Determining Authority directed that Dr Bartos be reprimanded, counselled by the Director, and repay $37,754 in Medicare benefits.

Dr Lynette Bellamy
Medical practitioner
Sydney, New South Wales

Medicare Australia (then the Health Insurance Commission) referred Dr Bellamy on 29 May 2002 because of concerns about the high proportion of long consultations to total consultations and her initiation of pathology. During the review period Dr Bellamy rendered 1,761 MBS item 5316 services and 1,032 MBS item 5417 services. Dr Bellamy’s percentage of long consultations to total consultations was 36.92 compared to 13.2 for all active medical practitioners. Dr Bellamy also initiated 5,129 pathology services to 1,199 patients, which was above the 98th percentile for all active medical practitioners.

The then Director referred Dr Bellamy to a PSR Committee on 10 December 2002. The Committee found that she had engaged in inappropriate practice in relation to 83 per cent of the MBS item 54 services sampled.

Dr Bellamy sought relief in the Federal Court on several grounds including the constitutionality of the Medicare and PSR Schemes. In relation to Dr Bellamy’s judicial review the Federal Court ordered that the matter be remitted to a differently constituted Committee.

A new Committee was established in June 2007. The Committee examined 34 MBS item 54 services and made findings on those 34 individual services. The Committee found that Dr Bellamy had engaged in inappropriate practice for one or more of the following reasons:

On 2 February 2009, the High Court, in Wong v The Commonwealth of Australia [2009] HCA 3, dismissed the application to have aspects of the Health Insurance Act 1973 (including the Determining Authority’s power to make a determination) declared invalid.

The Determining Authority was able, therefore, to proceed to make a final determination in Dr Bellamy’s case.

The Determining Authority directed that the Director reprimand and counsel Dr Bellamy, and that she repay $1,098.20 being the entire amount of Medicare benefits paid for the MBS item 54 services in which a finding of inappropriate practice was made.

Dr Peter Hamilton Birdsey
General practitioner
Christie Downs, South Australia

Medicare Australia referred Dr Birdsey to PSR as it was concerned about the high volume of services per patient he rendered. Dr Birdsey’s individual patient base was on the 64th percentile yet his services to these patients were at the 92nd percentile. Medicare Australia also held concerns about Dr Birdsey’s prescribing of drugs of addiction, dating back to 2003. As he was not able to address these concerns in the intervening period he was referred to PSR. During the period under review Dr Birdsey had issued:

On examination of Dr Birdsey’s medical records the Director found that during the review period Dr Birdsey had issued 2050 tablets of Mogadon to one patient. The same patient had been given 82 separate prescriptions but Dr Birdsey had only seen him nine times during the review period. Many of Dr Birdsey’s patients were taking large doses of narcotics in addition to multiple benzodiazepines. Another patient received 51 prescriptions for oxazepam without any supportive clinical record.

If, in the course of his review, the Director forms the opinion that a practitioner’s conduct has caused, is causing or is likely to cause, a significant threat to the life or health of any person he must refer the matter to the State Medical Board. In this case the Director did refer Dr Birdsey’s conduct to the South Australian Medical Board due to his high volume of prescribing of narcotics and benzodiazepines without apparent regard to the dangers.

Dr Birdsey was also referred to a PSR Committee. The Committee’s final report contained a finding that Dr Birdsey engaged in inappropriate practice in connection with:

The Committee found that Dr Birdsey had prescribed drugs of dependence in excess of levels that would be acceptable to the general body of general practitioners. Dr Birdsey’s records were generally poor, brief, with a large number of consultations missing, and provided no evidence of adequate monitoring of the patients on drugs of dependency.

On receipt of the Committee’s final report, the Determining Authority was sufficiently concerned with Dr Birdsey’s conduct during the review period to make a separate referral to the Medical Board of South Australia.

The Determining Authority directed that Dr Birdsey be reprimanded and counselled by the Director, repay $86,998.34 of Medicare benefits and be fully disqualified from providing services under the Medicare arrangements for six weeks.

Dr Rifaat George Dimian
General practitioner
Merrylands, New South Wales

Medicare Australia (then the Health Insurance Commission) referred Dr Dimian in May 2000 because it had concerns over his:

During the 12-month review period Dr Dimian rendered 17,525 services to 3,214 patients for a total Medicare benefit of $447,015. Dr Dimian’s services were above the 99th percentile when compared to all other active medical practitioners in Australia. During the review period, Dr Dimian also prescribed 18,221 PBS items for a net benefit of $264,555.66.

The Director referred Dr Dimian to a PSR Committee. The Committee in its Draft Report made a finding that Dr Dimian had practised inappropriately in over 80 per cent of his rendered MBS item 53, 54 and 9718 services. The Committee’s final report, dated 6 January 2004, detailed Dr Dimian’s inappropriate

practice and noted that Dr Dimian’s medical records lacked a record of essential clinical information, such as the presenting complaint, duration and severity of the complaint, presence or absence of symptoms, or any assessment by Dr Dimian. The deficiencies in the medical records were such that another practitioner would be unable to take over the care of Dr Dimian’s patients. The Committee also found that during the above-mentioned consultation services Dr Dimian prescribed drugs that were not medically necessary for the treatment of his patients.

Dr Dimian commenced proceedings in the Federal Court and the High Court of Australia seeking to challenge various aspects of the PSR Scheme and the referral.

The Federal Court dismissed Dr Dimian’s application for judicial review of his referral on 8 December 2004. He appealed that decision and the Full Court of the Federal Court ultimately dismissed his appeal on 16 September 2005.

Additionally, Dr Dimian was a party to proceedings that challenged the constitutionality of the Medicare and PSR schemes. On 2 February 2009, the High Court, in Wong v The Commonwealth of Australia [2009] HCA 3 dismissed the application to have aspects of the Health Insurance Act 1973 (including the Determining Authority’s power to make a determination) declared invalid.

On consideration of the Committee’s final report, the Determining Authority directed that Dr Dimian be reprimanded, counselled by the Director, and repay to the Commonwealth the sum of $155,818.20 in Medicare benefits.

Mr Ngalufua’atonga Havea
Otorhinolaryngologist
Bendigo, Victoria

Medicare Australia referred Mr Havea in April 2006. It was concerned with Mr Havea’s use of MBS item 4563219 services in combination with other surgical items, and with Mr Havea’s high volume of MBS item 45632 services. During the review period Mr Havea was the highest provider of MBS item 45632 services in Australia.

The Director engaged a consultant to review Mr Havea’s clinical records. The consultant reported among other things that:

[H]e appears to embark on radical sinus surgery on the most minimal indication for such surgery … there is no objective evidence in the literature that Dr Havea’s method of alar rhinoplasty contributes to any improvement in nasal function ...

The Director referred Mr Havea to a PSR Committee. The Committee unanimously found that Mr Havea had engaged in inappropriate practice in respect of the 39 MBS item 45632 services it examined.

The Committee was of the view that Mr Havea had engaged in inappropriate practice for one or more of the following reasons:

The Committee was concerned that Mr Havea undertook multiple, major procedures much more commonly than his peers, and that some of these procedures were not medically necessary. The Committee found that Mr Havea did not consider using conservative treatment in the first instance. All the clinical notes the Committee examined were brief, of poor quality and lacked adequate clinical details.

The Determining Authority directed that Mr Havea be counselled and reprimanded by the Director, repay to the Commonwealth $14,554.35 in Medicare benefits and be disqualified from providing MBS item 45632 services for six months.

Dr George Maragoudakis
General practitioner
Frankston, Victoria

Medicare Australia (then the Health Insurance Commission) referred Dr Maragoudakis in November 2002. It was concerned that, based on the evidence available to it, Dr Maragoudakis had engaged in inappropriate practice in connection with rendering 80 or more professional attendances on 20 or more days. It verified that Dr Maragoudakis had rendered more than 80 professional attendances on 42 days.

Dr Maragoudakis was referred to a PSR Committee.

The Committee’s final report contained a finding that Dr Maragoudakis had engaged in inappropriate practice. That finding was based on the Committee’s conclusion that Dr Maragoudakis’ conduct during the referral period amounted to a prescribed pattern of services and that his provision of services was not affected by exceptional circumstances.

Dr Maragoudakis challenged the Committee’s decision and findings, as set out in its final report.

On 16 January 2006, the Federal Court ordered that the Adjudicative Referral be remitted to the Committee to be determined according to law. A new committee was established to consider the adjudicative referral.

Having set aside the first Committee’s final report, the new Committee called for written submissions in respect of Dr Maragoudakis’ claims of exceptional circumstances and conducted a hearing on 1 August 2006. Dr Maragoudakis attended the hearing and was accompanied by his legal representative.

The Committee unanimously found that Dr Maragoudakis had engaged in inappropriate practice. It concluded that Dr Maragoudakis’ conduct in connection with provision of services amounted to a prescribed pattern of services and that exceptional circumstances did not affect his provision of services during the referral period.

The Determining Authority directed that Dr Maragoudakis be reprimanded and counselled by the Director and be disqualified from providing professional attendance services under Medicare for six months.

Dr Michael George Papps
General practitioner
North Adelaide, South Australia

Medicare Australia (then the Health Insurance Commission) initially referred Dr Papps to PSR in August 2002 because it was concerned about his rendering of MBS items 4520020 and 45206,21 relating to skin flaps. Dr Papps was the highest renderer of MBS item 45200 services compared with all general practitioners in Australia and he was the second highest renderer of MBS item 45206 services.

When Dr Papps did not comply with the Director’s request to produce his medical records, the Director disqualified him from access to Medicare. Dr Papps finally complied with the notice to produce his medical records and a review of his provision of services during the relevant period commenced in February 2005. The Director formed the view that Dr Papps may have engaged in inappropriate practice in relation to MBS items 45200, 45206 and MBS item 36 services.

A PSR Committee was established to investigate and found that Dr Papps’ conduct in providing all the MBS item 36, 45200 and 45206 services examined was inappropriate.

Specifically, the medical records examined for MBS item 36 services lacked essential clinical information. They failed to contain:

The Committee did not accept that Dr Papps performed single-stage local flaps in any of the MBS item 45200 and 45206 services examined because:

The Committee was also concerned that Dr Papps’ conduct had caused, was causing, or was likely to cause a significant threat to the life or health of patients under his care. Accordingly, pursuant to section 106XA of the Health Insurance Act 1973, the Committee referred Dr Papps to the Director for referral to the Medical Board of South Australia.

The Determining Authority directed that Dr Papps be reprimanded and counselled by the Director, repay $12,470.85 in Medicare benefits and be disqualified from providing MBS item 45200 and 45206 services for six months.

Dr Lily Vanker
General practitioner
Edgecliff, New South Wales

On 24 April 2007 Medicare Australia asked the Director to review Dr Vanker’s provision of services. It was particularly concerned about her initiation of pathology during the review period. Dr Vanker had an individual patient base on the 33rd percentile and pathology services on the 87th percentile. Medicare Australia was concerned that the high level of pathology may have been inappropriately initiated, particularly as her patients were mainly younger females unlikely to have a large burden of chronic disease.

Dr Vanker appeared to have a special interest in women’s health issues, which was consistent with her patient gender demographic during the review period. The Director examined Dr Vanker’s medical records to assess her consultations and her clinical reasons for initiating pathology.

Dr Vanker’s medical records were brief and difficult to read. The records examined relating to Dr Vanker’s initiation of pathology were also difficult to read and did not contain a copy of the required pathology reports. The Director therefore considered it necessary to establish a PSR Committee to undertake a peer investigation of Dr Vanker’s provision of services to ascertain whether it was medically necessary to initiate the pathology tests she provided during the review period.

The Committee found that 90 per cent of Dr Vanker’s MBS item 23 services, 90 per cent of her MBS item 36 services and all the MBS item 6671022 services examined to be inappropriate. The Committee’s criticisms of Dr Vanker’s consultation items were for one or more of the following reasons:

As an example, a patient presented to Dr Vanker with concerns about breast swelling. The history Dr Vanker took did not address whether there was a family history of breast cancer, how long the swelling had been present, and whether the swelling came in cycles.

The Committee also found that Dr Vanker had engaged in inappropriate practice when initiating pathology under MBS item 66710. The Committee found that Dr Vanker had initiated hormone testing without clinical indications accepted by the general body of general practitioners.

The Determining Authority directed that the Director reprimand and counsel Dr Vanker, that she repay $79,032.92 in Medicare benefits, she be disqualified from using MBS item 66710 for 12 months, and be fully disqualified from providing services to which a Medicare benefit relates for three months.

Practitioners should be aware that while their patients may be exploring other treatment options or new ways of managing or coping with their medical conditions, and while they may otherwise be under the care of their own general practitioners, this does not dilute the importance of adequate medical records and the contribution those records should be capable of making to the overall assessment and management of those patients.

Dr Yang Soon Yeap
General practitioner
Frankston, Victoria

On 24 March 2003, Medicare Australia (formerly the Health Insurance Commission) asked the Director to review Dr Yeap’s provision of services during the period 24 September 2001 to 26 August 2002 (the review period). The purpose of the review was to consider whether Dr Yeap might have engaged in inappropriate practice in connection with rendering 80 or more professional attendances on 20 or more days.

Medicare Australia’s verified records showed Dr Yeap had rendered 80 or more professional attendances per day on 32 occasions during the review period for a total benefit of $69,423.35.

The Director established a Committee and made a referral to it to investigate whether Dr Yeap had engaged in inappropriate practice. The referral was based on the evidence that the circumstances in which some of Dr Yeap’s professional attendances were rendered constituted a prescribed pattern of services as defined in section 106KA of the Health Insurance Act 1973 and Part 3 of the regulations.

Dr Yeap challenged the Committee’s final report, dated 25 September 2004, in the Federal Court. On 19 April 2006 the court remitted the matter back to the Committee to determine it according to law. On 1 June 2006 the Director established a new Committee to consider the referral.

On 5 October 2006 the newly established Committee held a hearing and called for submissions. The Committee issued a final report dated 5 December 2008. It unanimously found that Dr Yeap had engaged in inappropriate practice. The Committee’s finding of inappropriate practice was based on its conclusion that Dr Yeap’s conduct in connection with rendering professional attendances on 32 days during the referral period constituted a prescribed pattern of services and that exceptional circumstances did not affect the rendering of those services on any of those 32 days.

The Determining Authority directed that Dr Yeap be reprimanded and counselled by the Director and to repay the sum of $17,355.83 to the Commonwealth.

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