United States Court of Appeals for the Third Circuit
760 F.2d 68, cert. denied, 474 U.S. 988 (1985)
Greber (defendant), a physician, founded Cardio-Med, Inc., a company that provided physicians with medical devices which recorded a patient’s cardiac activity on a tape. Greber then sought financial reimbursement for the services from Medicare for all eligible patients and gave a portion to any physician referring a patient to use the device. Greber claimed that the referring physicians had provided “interpretation fees” even though Cardio-Med had evaluated the device data. The fee paid to the physicians, 40 percent per patient, was more than Medicare allowed. In a prior civil proceeding, Greber had testified that “if a doctor didn’t get his consulting fee, he wouldn’t be using our service.” Based on Cardio-Med’s billing records, the federal government charged Greber with providing financial kickbacks to referring physicians in violation of 42 U.S.C. § 1395nn(b)(2)(B), the “Anti-Kickback” statute. At trial, the district court judge instructed the jury that the government was required to prove that Cardio-Med paid the physicians some part of the amount received from Medicare; that defendant knowingly and willfully caused Cardio-Med to make the payment; and that it did so with the intent to induce the physicians to use Cardio-Med’s services. The judge also charged that even if a physician actually interpreted a patient’s test as a Cardio-Med consultant, it did not matter if one purpose of the referral fee was to induce the ordering of services from Cardio-Med. The jury found Greber guilty. Post-trial motions were denied and defendant appealed.
Rule of Law
Holding and Reasoning (Weis, Circuit J.)
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