3 December 2018

PSR legal challenge gathers momentum

Medicolegal TheHill

Doctors are rallying behind a legal challenge that alleges the Professional Services Review (PSR) denies natural justice to medical professionals suspected of improper billing.

Dr Anchita Karmakar, a GP registrar, filed the action in the Federal Court earlier this year, naming the Minister for Health, Greg Hunt, as respondent and seeking a judicial review of the Medicare regulator.

Former AMA president Dr Mukesh Haikerwal said the case was important for the whole profession, adding the professional bodies had been unwilling or unable to rectify the “unfair and unreasonable” PSR system. 

The original intent of the PSR had been to have a genuine peer review process on matters of best practice free of legalistic baggage, the prominent Melbourne GP and practice owner said.

“What we’ve found, though, is that doctors are the worst adjudicators of their peers.” 

A lack of scrutiny of the body’s powers, rules forbidding doctors to speak about its proceedings and rulings, and not allowing them legal representation at hearings, stacked the odds against anyone who came under review, he said.

“Most of these reviews become sham reviews. People who come before these committees are basically grilled by three people – there’s no voice of reason, they have been briefed by lawyers from PSR, and the outcome is a foregone conclusion.” 

Doctors have told The Medical Republic they resorted to underbilling to avoid attention or had paid fines they did not believe they deserved to escape from a long, onerous PSR investigation.

“You’ve got to say you are guilty even when you don’t feel guilty, and then it’s on your record. Every time you apply for a job you have to put that down. It sticks in your craw a bit,” Queensland GP Scott Masters said. 

Dr Masters, who has a special interest in musculo-skeletal medicine, said fraud and overservicing should be picked up. But the PSR’s statistics-based probes tended to treat GPs as an amorphous group and see any anomaly as suspicious.

“They don’t allow for whether you are rural or city, or whether you have a special interest, or whether you deal with a certain community that differs from others around Australia,” he said.

There was no feedback about decision-making, and the focus of interest had moved from Level C consults some years ago to care plans, after-hours services and, more recently, skin medicine, he added. 

A Melbourne GP said his brush with the PSR reminded him of being arrested and beaten in communist Poland for having organised a doctors’ strike. 

The former surgeon said he endured a year of “fishing expeditions” by PSR investigators who questioned his ordering of CT scans and refused to accept evidence from eminent experts that his decisions had been correct. 

He said he was told: “We have the right to admit or reject the evidence given to us, and we choose to reject your evidence, and you will not be able to have Professor B and Dr L to speak in your defence.”

Dr Karmakar is thankful for colleagues’ support in her crowd-funding appeal to engage human rights barrister Julian Burnside to argue the case for a judicial review.   

The outcome will not have any bearing on her own three-year-old PSR matter involving alleged improper billing at a clinic and an after-hours service. 

As of next July, Medicare will be empowered to garnish funds from practices where a doctor is found to have rorted Medicare. At the very least, the rule is expected to increase support and oversight of registrars’ billing.

Dr Haikerwal praised Dr Karmakar for “throwing down the gauntlet”. 

He likened her situation to that of Dr Hadiza Bawa Garba, a UK paediatric registrar who won a long court battle after being struck off for her role in the death of a child at a hospital where she was working unsupported.

“She was also deserted by her profession. She also had to crowd fund her defence, and a good band of people supported her, and right was then seen to be done,” he said. 

The crowdfunding campaign is at: https://www.gofundme.com/fairhealthcare

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7 Comments on "PSR legal challenge gathers momentum"

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April Armstrong
Guest
3 months 15 days ago
I fully support the PSR model and Medicare in their attempt to recover funds that have been unethical and illegal billed. For anyone who knows anything about Medicare billing the doctor in question HAS billed incorrectly and blamed a system of failures for fraudulent billing. In 2017 the doctor in question posted copies of letter from Medicare outlining the services, item numbers and period under review – a simple mathematical calculation will prove that the billings were impossible to reproduce legally – and certainly not ethically. I am yet to see a public statement from the Doctor in question denying… Read more »
Ralph Vida
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Ralph Vida
3 months 29 days ago
I am surprised at the paucity of (expected) commentary. Where are you, Lou? No offense to you Mr Dahm but are you not out of your area of expertise? There are many crooks out there… Don’t start me, but it is of course un-Australian to be a dobber methinks Re-write whistleblower legislation and roll a generation fwd to enshrine notification in the national ethos akin to Anzac sacrifice /bravery /altruism, and I’m in. But only if you return the saved funds to the underpaid majority of honest GPs Target the specialists for a change please – why endocrinologist fructosamine assays… Read more »
Tania Z (Qld)
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Tania Z (Qld)
4 months 18 days ago

It was clear and common sense to abide by the rules and regulations in billing reasonably and appropriately like majority of practitioners to be fair. It is hard to believe that a well respected Dr Haikerwal will encourage to ignore the common sense practice. Agreed with Dr Masters’s notion. Indeed Medicare is a bit of complex and mess. However there are some doctors who will spin when caught up.

Tania Z (Qld)
Guest
Tania Z (Qld)
4 months 16 days ago

Sorry for my phrase. Don’t mean at all doctor caught up with PSR are rotters. The point wishing to say was “Indeed, the tool of PSR and medicare billing are very complex. All the best Anchita.

David Dahm
Guest
4 months 16 days ago
Ego and ignorance is man’s greatest mistake. Constructive feedback starts with reading Dr Karmakar’s evidence like many others have before making a call. I do not condone Medicare fraud. The PSR admitted and the Senate said there was a problem in the 2011 PSR Federal Senate Inquiry. Nothing has changed. Most doctors are too afraid to speak out (this includes liking a post but they are all talking about it. This has touched many good doctors lives. Medicare audit anxiety is harming patient care down to the number of pap smears a female doctor does. This issue is subtle and… Read more »
Anchita Karmakar
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Anchita Karmakar
4 months 17 days ago

Tania have been through a PSR audit? Or would you be willing to put yourself through one? I don’t think common sense actually works and that’s the point Dr Haikerwal is pointing out. Not all your colleagues who go through PSR are rorters.

Tan Letran
Guest
Tan Letran
4 months 18 days ago

Go Dr Karmakar, we are 100% support of your action agaianst the tyrrany of the PSR

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