In May, 2009, the United States Court of Appeals for the Eleventh Circuit ruled that, among other things, a Florida dermatologist’s failure to produce photographs, which were part of her medical records, in response to a grand jury subpoena constituted obstruction of justice.  The dermatologist had been convicted of health care fraud, filing false claims and obstruction of justice in the trial court.

The Florida physician’s Medicare billing for a tissue rearrangement procedure came under scrutiny by the Medicare Part B carrier because of an alleged “aberrant” utilization rate. In response to a 1999 focused review by the carrier, the physician submitted copies of medical records, including photographs. In response to a follow-up request in 2000 for more information by the carrier, the physician produced records without photographs. A close review of records apparently revealed what appeared to be identical operative reports for all patients reviewed.

Subsequent carrier requests in 2001 for photographs went unanswered. Nevertheless, the carrier educated the physician on proper documentation. Billing anomalies apparently continued after that time. A subsequent carrier request for records resulted in a record production, but without photographs. Again, the operative reports appeared to be identical.

In 2002, the Office of Inspector General (OIG), on referral from the carrier, conducted a search warrant at the physician’s practice, but could not locate 300 patient files. In January, 2003, a federal grand jury issued a subpoena for the missing records. A majority of the 300 files was produced, but without photographs. The physician was indicted on charges of health care fraud, filing false claims, and one count of obstruction of justice. The apparent basis for the obstruction conviction was that she had instructed her staff not to produce the photographs to the grand jury as part of her records.

On appeal, the Court of Appeal reasoned that the crime of obstruction of justice applied to the physician’s withholding of the photographs from the grand jury. The obstruction of justice statute prohibits the knowing alteration, destruction, mutilation, concealment, cover-up or falsification of a record with the intent to impede, obstruct, or influence an investigation within the jurisdiction of any department or agency of the United States. The Court did not accept the physician’s argument that the obstruction of justice statute does not extend to judicial proceedings such as a grand jury investigation. The Court reasoned that the prohibition reaches activity “`in relation to or in contemplation of’ any matter `within the jurisdiction of any department or agency of the United States’”. Because the Department of Health and Human Services conducted the investigation and the grand jury subpoenaed records “in relation to or in the contemplation of” the investigation, the obstruction of justice statute applied.

The full case can be found at United States v. Hoffman-Vaile, 568 F.3d 1335 (11th Cir. 5/27/09).