Insurers Seethe After Case Against Doctor Dismissed

California insurers are fuming over a judge’s dismissal of criminal charges against a Santa Ana doctor who was accused of overbilling in workers’ compensation cases.

The doctor faced multiple charges of running up fees from the moment a patient arrived at his office rather than limiting the charges to examination time. But an Orange County judge dismissed the 67 felony charges against Dr. Edward Boseker in June in the middle of a jury trial, saying the orthopedic surgeon did not intend to defraud anyone.

In throwing out the case, Superior Court Judge Robert R. Fitzgerald sided with former workers’ comp judges, who interpreted a state regulation limiting doctors’ charges to “face-to-face” time with a patient to include the total time a patient spends in the office. Insurers and others said they were shocked that the judge upheld that interpretation, which they described as “bizarre.”

The dismissal has prompted insurers to call for the state to step up its oversight of local workers’ comp judges, known as referees. “The problem is there are no statewide policies or procedures to provide for consistent interpretation of the law,” said Ed Woodward, an official at the California Workers’ Compensation Institute.

In the trial, two retired referees testified that they had interpreted “face-to-face” time as the entire period the patient spends in the office. Others insist, however, that the regulation clearly limits the time.

“It’s as clear as a bell,” said Pamela Foust, a workers’ comp referee in Santa Monica.

Boseker’s lawyer, Ronald Brower, said, however, that the state’s case against his client simply was weak. He speculated that insurers were angry with Boseker because he considers the interests of injured workers rather than insurers.

Boseker is one of many California doctors, lawyers, chiropractors and others involved in the workers’ comp system to face charges in recent years from anti-fraud investigators across the state.

In efforts to crack down on suspected fraudulent operators, the California Legislature created a special program in 1992 to fund investigations by insurance regulators and local district attorneys. Officials say 1,810 arrests were made between July 1, 1992, and Dec. 30, 1997, resulting in 1,323 convictions.

The Orange County district attorney’s office began investigating Boseker three years ago after a former employee complained about possible improper billing of insurers, said Doug Brannan, a deputy district attorney.

Investigators searched the doctor’s office and seized files. They worked with 20 insurers to develop evidence of possible wrongdoing.

In 1996, Boseker was charged with 67 felony counts, including 45 charges that he submitted improper bills for “face-to-face” time with patients. He also was accused of overbilling for time spent reviewing medical records.

In the trial, Adolph U. Molina, a retired supervising referee in Orange County, testified that he had widely interpreted “face-to-face” time as beginning when the patient enters the doctor’s office. He noted, for instance, that a nurse, or someone who is “an extension of the doctor’s persona” will take down the patient’s history before the individual actually meets with the doctor.

“As long as you’re there in front of his staff personnel, the X-ray technician, the lab tests . . . the historian . . . that’s all time in the office,” Molina stated. “After all, the doctor’s paying for the rent. And he’s paying for all these personnel.”

Boseker’s lawyer argued that the doctor billed according to that policy and did not intend to deceive insurers. He also said the doctor was wrongly accused of overbilling for reviewing records because prosecutors failed to count certain records that the doctor had reviewed.

Judge Fitzgerald is on vacation and couldn’t be reached for comment. Prosecutors say his ruling can’t be appealed because that would place the doctor in double jeopardy.

Molina could not be reached for comment. But his interpretation of the law no longer holds in Orange County--if it ever did. “Face-to-face time means exactly that,” said Allan Bass, who is now presiding referee.

Foust, the Santa Monica referee, noted that, before the trial, an investigator for Boseker contacted her to check on her suitability as a possible expert witness. When she told him she considered “ridiculous” the notion that “face-to-face” time meant the patient’s entire time in the office, she said the investigator politely hung up.