Statistically Speaking

U.S. v. Chhibber | 12-2728

March 2014

For those of you who practice in the health care arena, Chhibber is a must read, and is probably worth sharing with the chief compliance officer of your favorite health care client. 

Chhibber was convicted of multiple counts of making false statements relating to a health care matter and general health care fraud. In a nutshell, the government’s case was premised on Chhibber’s medically unnecessary use of various diagnostic tests.  The government established that Chhibber recorded fake symptoms and sham diagnoses to fraudulently justify these unnecessary procedures.

What is significant about this case is the government’s use of statistical evidence to prove its case.  It is no secret that the government is increasingly using data mining to identify and investigate health care fraud by finding statistical outliers. See e.g. HHS-OIG Semiannual Report to Congress May 2013 – September 2013 (using data mining as a means of identifying hospitals and providers who may be involved in fraudulent billing practices).  But in Chhibber, the government went one step further, and used similar data to prove Chhibber’s guilt.

Specifically, the government sought to introduce statistics showing that the defendant “performed various tests on his patients with much greater frequency than other internists in the same geographic area.”  The defendant objected to the data, arguing that the government used an improper comparison group, and the trial court agreed.  Nevertheless, the trial court permitted the government to introduce summary charts reflecting the percentages of Chhibber’s patients who received various diagnostic procedures, and to argue (based on the testimony of an expert witness internist who opined on the general frequency with which such tests were performed) that Chhibber’s percentages were abnormally high.  On appeal, the Seventh Circuit affirmed.

Many attorneys went to law school to avoid statistics.  For those of us practicing in health care law, however, it may be time to dust off those college textbooks in order to defend our clients.