Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
David Benjamin, M.D., |
DATE: June 27, 2000 |
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The
Inspector General
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Docket No.C-98-353 Decision No. CR681 |
DECISION | |
I find that the Inspector General (I.G.) is required to
exclude Petitioner, David Benjamin, M.D., pursuant to section 1128(a)(2)
of the Social Security Act (Act), from participating in Medicare and other
federally funded programs. The exclusion is mandated as a consequence
of Petitioner's conviction, under New York State law, of a criminal offense
relating to neglect or abuse of a patient in connection with the delivery
of a health care item or service. I find additionally that the length
of the exclusion that the I.G. imposed against Petitioner, 30 years, is
not unreasonable. I. Background Petitioner is a physician. On March 31, 1998, the I.G.
notified Petitioner that he was being excluded pursuant to section 1128(a)(2)
of the Act for a period of 30 years. Petitioner requested a hearing and
the case was assigned to me for a hearing and a decision. Petitioner advised me that he was appealing his conviction
and I agreed to stay the case pending the outcome of the appeal. I instructed
Petitioner to keep me advised as to the status of the appeal. Over a year
elapsed without any communication from Petitioner concerning the status
of his appeal. I advised the parties that I was not willing to stay the
case for an additional period. The I.G. then advised me that she believed
that the case could be decided based on an exchange of written submissions.
I set up a schedule for the parties to file written submissions. The I.G. moved for summary affirmance of the case. Petitioner submitted statements which, to some extent, respond to the I.G.'s motion. Petitioner contends variously: (1) that he is unable to proceed without the assistance of counsel; (2) that he is unable to afford counsel; (3) that I should appoint counsel to represent him; (4) that he is innocent of the crimes for which he was convicted; and (5) that he is the victim of malicious efforts by various entities and individuals to ruin him professionally and to incarcerate him based on a falsely obtained conviction. Additionally, Petitioner has at times asserted that he is declining to participate in this case. Clearly, this case has unusual features. Petitioner is
not only appearing pro se, but has, at times, asserted that he does not
intend to participate in the case. At other times, however, Petitioner
has filed arguments which clearly demonstrate that he resists the I.G.'s
determination. I conclude that, Petitioner's assertions to the contrary,
he has not abandoned his hearing request. I am treating all of Petitioner's
statements as being in the nature of testimony. I am combining these statements
as a single exhibit, which I am identifying as P. Ex. 1 and admitting
into evidence. The I.G. submitted nine exhibits with its motion (I.G.
Ex. 1 - I.G. Ex. 9). I am receiving these exhibits into evidence along
with P. Ex. 1. II. Issues, findings of fact and conclusions of
law
The issues in this case are whether:
I make findings of fact and conclusions of law (Findings)
to support my decision in this case. I set forth each Finding below, as
a separate heading. I discuss each Finding in detail.
Section 1128(a)(2) of the Act mandates the exclusion of
any individual who has been convicted:
The I.G. is required to prove each of the elements of
section 1128(a)(2) in order to establish that she has the authority to
exclude an individual pursuant to that section. The I.G. has done so in this case.
The evidence submitted by the I.G. establishes that Petitioner
was convicted of a criminal offense under the laws of the State of New
York. On August 10, 1993, a four count indictment was filed against Petitioner
in the Supreme Court of the State of New York, County of Queens. The first
count of that indictment accused Petitioner of the crime of murder in
the second degree. I.G. Ex. 3 at 2. Specifically, the indictment alleged
that, on or about July 9, 1993, Petitioner, under circumstances evincing
a depraved indifference to human life, recklessly engaged in conduct which
created a grave risk of death to an individual (G.N.), thereby causing
her death. Id. Petitioner had a jury trial. On August 3, 1995,
the jury returned a guilty verdict on the first count of the indictment.
I.G. Ex. 5 at 5 - 8.
The I.G. established that Petitioner was convicted of
neglect or abuse of a patient in connection with the delivery of a health
care item or service. Petitioner was convicted of murdering G.N. during
the course of performing an abortion on G.N. The jury in Petitioner's case found that, on July 9, 1993,
Petitioner attempted to perform an abortion on G.N. I.G. Ex. 6 at 55;
See I.G. Ex. 3. The setting for this attempted procedure was an
outpatient clinic known as the Metro Women's Center of Queens, in the
Borough of Queens, New York. I.G. Ex. 4 at 1. Petitioner attempted to
perform the procedure on G.N. during the 19th or 20th
week of her pregnancy. I.G. Ex. 6 at 55. The jury found that Petitioner knew or should have been
aware of the state of G.N.'s pregnancy. I.G. Ex. 6 at 55. It found that
Petitioner should have referred G.N. to a hospital in order to have the
procedure performed. Id. It found that Petitioner elected not to
do that. Id. The jury found that, instead, Petitioner elected to
perform the procedure at his office (the outpatient clinic) without having
the proper anesthesia and without having any backup support. Id. The jury found that, in attempting to perform an abortion
on G.N., Petitioner caused a three inch by one inch laceration to G.N.'s
uterus. I.G. Ex. 6 at 56. It found that this injury caused G.N. to suffer
an extreme loss of blood. Id. The jury found that Petitioner failed
to make arrangements immediately to transport G.N. to a hospital in order
to treat her laceration and to stop the bleeding. Id. at 56 - 58.
It found that, while G.N. was bleeding profusely, Petitioner left G.N.
unattended while he performed an abortion on another patient. Id.
at 58. The jury found additionally that Petitioner returned to
treat G.N. only after G.N.'s niece made entreaties to him. I.G. Ex. 6
at 58. It found that, at that point, Petitioner, assisted by his wife
- who had no medical training - attempted to insert a breathing tube into
G.N.'s lungs. Id. at 58. It found that Petitioner inserted the
tube into G.N.'s esophagus rather than into her air passage. Id.
Emergency medical technicians were then summoned to the clinic. I.G. Ex.
4 at 3. On arrival, they determined that G.N. appeared to be dead. Id.
They transported G.N. to New York Hospital Medical Center of Queens, where
G.N. was determined to be dead on arrival. Id. at 4. Under section 1128(a)(2) an exclusion is mandated for
an individual convicted of either abuse or neglect. The I.G. asserts that
Petitioner was convicted of abusing G.N. Petitioner was indicted for exhibiting
a depraved indifference to the life of G.N. I.G. Ex. 3. The trial judge
who presided over Petitioner's criminal case summed up his conviction
as follows:
I.G. Ex. 6 at 59. What is evident from both the indictment and from the
trial judge's findings is that Petitioner was charged with, and convicted
of, being recklessly indifferent to the welfare of G.N., thereby causing
her death. Under New York State law, reckless indifference to the welfare
of an individual in a circumstance that results in that individual's death
is plainly interchangeable with the intentional murder of that individual. It is less clear whether such indifference amounts to
"abuse" within the meaning of section 1128(a)(2) of the Act. Neither the
term "abuse" nor the term "neglect" is defined at section 1128(a)(2).
In a different circumstance, the Secretary has defined "abuse" to mean
the willful infliction of harm to an individual. 42 C.F.R. � 488.301.
Arguably, Petitioner's conviction might not meet the technical definition
of a conviction for "abuse" because he was not convicted of intentional
murder. But, it is not necessary to resolve the issue of whether
Petitioner was convicted of abusing G.N. Section 1128(a)(2) of the Act
mandates exclusion for a conviction of either neglect or abuse.
Here, Petitioner plainly was convicted of the criminal neglect of G.N.
even if that conviction arguably might not meet the technical definition
of "abuse." Petitioner argues strenuously that he is not guilty of
the crime for which he was convicted. He asserts that he is the victim
of false and malicious allegations. Petitioner's arguments carry no weight
in deciding whether the I.G. is required to exclude Petitioner under section
1128(a)(2) of the Act. The mandatory exclusion requirement derives from
a conviction of an offense that falls within the ambit of section
1128(a)(2). Whether Petitioner actually committed the acts that the jury
found that he committed is irrelevant to deciding the question of whether
Petitioner was convicted of a section 1128(a)(2) offense. All that the
I.G. must establish is that Petitioner was convicted of the allegations
that were made against him. The I.G. has met this burden here.
As I discuss above, at Finding 1, Petitioner was convicted
of a criminal offense that falls within the ambit of section 1128(a)(2)
of the Act. Exclusion for such a conviction is mandatory. The Act imposes
a minimum exclusion period of at least five years for any individual who
is excluded pursuant to section 1128(a)(2). Act, section 1128(c)(3)(B).
The Secretary has published regulations which govern the
length of exclusions that are imposed pursuant to section 1128 of the
Act. 42 C.F.R. Part 1001. The regulation which establishes criteria to
govern the length of exclusions that are imposed pursuant to section 1128(a)(2)
is 42 C.F.R. � 1001.102. This regulation identifies "aggravating" factors
which may be used, if present in a case, as a basis to lengthen an exclusion
beyond the five-year minimum period and "mitigating" factors which may
be used, if present in a case, to offset any aggravating factors that
are established. The regulation makes clear that only those factors
that it identifies as either aggravating or mitigating may be considered
to determine whether an exclusion of more than five years is reasonable
in a case involving section 1128(a)(2) of the Act. The aggravating and
mitigating factors thus operate as rules of evidence in such a case. Evidence
which does not relate to an identified aggravating or mitigating factor
is irrelevant to determining the length of an exclusion and may not be
considered. The regulation does not, however, prescribe the weight
which is to be given to any aggravating or mitigating factor. The regulation
contains no formula prescribing any exclusion length beyond the five-year
minimum period based on the presence of aggravating factors or absence
of mitigating factors. Rather, the regulation merely identifies the factors
which may be used to lengthen an exclusion beyond the minimum period. The factors which are identified in 42 C.F.R. � 1001.102
may not be applied arbitrarily to lengthen an exclusion beyond the five-year
minimum. The regulation establishes the criteria which may be considered
in determining whether or not to lengthen an exclusion. But, in the absence
of any statement in the regulation as to how much weight must be given
to an aggravating or mitigating factor, one must look to the purpose of
the Act in order to determine what is the reasonable length of an exclusion
where aggravating or mitigating factors are present. Section 1128 of the Act is a remedial statute. Its purpose
is not to punish an excluded individual but to protect federally funded
health care programs and the beneficiaries and recipients of program funds
from an individual whose conduct establishes him or her not to be trustworthy.
In assessing the length of any exclusion that is imposed under section
1128, the ultimate issue that must be addressed
is: how long an exclusion is reasonably necessary to protect programs,
beneficiaries, and recipients from an untrustworthy individual? The I.G. may not arbitrarily exclude an individual for
any period of more than five years simply because aggravating factors
exist in a given case. The I.G. must weigh the evidence that pertains
to aggravating and mitigating factors in order to establish the degree
of untrustworthiness that is manifested by the excluded individual. An
exclusion that is not based on what the evidence which relates to aggravating
and mitigating factors shows about the trustworthiness of the excluded
individual may be arbitrary and unreasonably punitive.
Any individual who is excluded pursuant to section 1128
of the Act has a right to a hearing before an administrative law judge.
Such a hearing is conducted pursuant to section 205(b) of the Act. That
section has been interpreted on numerous occasions to require a de novo
hearing and an independent decision by an administrative law judge. That is not to suggest that an administrative law judge
is free to ignore entirely the determination that is made by the I.G.
The I.G. has expertise in making exclusion determinations and her determinations
deserve to be respected. The I.G.'s exclusion determination should be
sustained as reasonable if that determination falls within a reasonable
range of possible exclusions. However, an administrative law judge must
evaluate independently the evidence relating to the aggravating and mitigating
factors that are set forth in the regulations. If the administrative law
judge concludes, based on his or her independent and de novo evaluation
of the evidence, that the exclusion imposed by the I.G. departs significantly
from that which the administrative law judge decides is reasonable, then
the administrative law judge may modify the length of the exclusion to
assure that the exclusion falls within a reasonable range of exclusions.
The I.G. determined to exclude Petitioner based on the
alleged presence of three aggravating factors in Petitioner's case. The
I.G. concluded that these factors were present based on regulations which
were in effect as of March 1998. The regulations have subsequently been
revised and amended. The changes that were made to the regulations have
no substantive effect on this case. However, as part of these changes,
the applicable sections were renumbered. For purposes
of clarity in this Finding, I cite both to the relevant regulation as
it was codified in March 1998, and as it is codified today. The I.G. proved the presence of three aggravating factors
in this case. These are as follows:
I have reviewed Petitioner's submissions in this case.
In none of them does Petitioner allege, much less does he prove, the presence
of any of the mitigating factors that are set forth at 42 C.F.R. � 1001.102(c). Petitioner's principal assertion is that he is not guilty
of the crime for which he was convicted. Petitioner intertwines with this
assertion his contention that he is the victim of falsified testimony.
As I have discussed above, at Finding 5, Petitioner has not offered credible
evidence to support these allegations. I find Petitioner's assertions
of innocence and of being a victim not to be credible. However, none of
these assertions - even if there were some truth to them - establish mitigating
factors under the relevant regulation.
The evidence establishes Petitioner to pose a grave threat
to any individual who might seek medical care from him. The lack of trustworthiness
manifested by Petitioner is extraordinary. A 30-year exclusion of Petitioner
is reasonable. An exclusion of 30 years is tantamount to a permanent
exclusion from participation in Medicare and other federally funded programs.
I have evaluated the exclusion that was imposed on Petitioner as if it
were a permanent exclusion. An exclusion of such length plainly is warranted
here given the evidence which relates to aggravating factors. I would have no difficulty sustaining a 30-year exclusion
of Petitioner based solely on the harm that Petitioner caused G.N. to
experience. The harm that Petitioner perpetrated on G.N. is incalculable.
The evidence relating to Petitioner's treatment of G.N. shows Petitioner
to be an absolutely untrustworthy individual. Petitioner mishandled G.N.'s
abortion procedure horribly, and then, through his indifference, allowed
G.N. to bleed to death. Based on these facts, the jury which convicted
Petitioner found that he displayed a depraved indifference towards human
life and convicted him of a crime that equates with premeditated murder. Petitioner's lack of trustworthiness is reflected by the
sentence that was imposed on him for his crime. Petitioner was sentenced
to serve a minimum prison term of 25 years. I.G. Ex. 6 at 54. Petitioner's
attorney requested that a reduced sentence be imposed. The judge rejected
that plea for leniency in light of the gravity of Petitioner's crime.
Id. at 54 - 58. Finally, the circumstances of Petitioner's prior administrative
sanction record establish Petitioner to be a manifestly untrustworthy
individual. The New York Administrative Review Board, in sustaining the
revocation of Petitioner's license to practice medicine in New York, sustained
the findings on which the revocation decision was based, citing Petitioner's:
I.G. Ex. 9 at 4. The findings of incompetence that were made in Petitioner's administrative sanction case were based on numerous and egregious failures by Petitioner to perform medical and surgical procedures consistent with applicable standards of care. I.G. Ex. 8. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge |
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