Fraudulent billing: preliminary hearing cross-examination questions

If you are charged in a false billing case, your defense attorney might seek to explore the basis for the case against you during the preliminary hearing. Suppose, as in the following example, that you are a pharmacist charged with fraudulently billing for drugs dispensed without a valid prescription, and the doctor is testifying at the preliminary hearing. Your attorney’s cross-examination of the doctor might include questions similar to these:

  • Part of Ms. Smith’s medical condition was that she had high cholesterol levels?
  • That’s a chronic condition—meaning it doesn’t go away?
  • And it is treated with what you might call maintenance medications—medications that the patient must take every day?
  • According to your chart on Ms. Smith, you did prescribe Mevacor for Ms. Smith in the years before 2004?
  • Did Ms. Smith sometimes call in to your office to ask that a new prescription be issued?
  • Did you always speak to her or did members of your staff?
  • Who?
  • Would your secretary make a note of the call?
  • And leave it for you?
  • Did you then call the pharmacy to authorize the medication or did you sometimes authorize a member of your staff to call?
  • Could your secretary call in the prescription without obtaining your prior authorization for that particular prescription, at least if it was a maintenance medication?
  • Did your secretary then make an entry in the chart on that day for the prescription?
  • You say that was the usual practice. Did your secretary sometimes not chart the medication?
  • You have no way of knowing how often your secretary failed to chart her call-in to a pharmacy of a maintenance medication?
  • Do you carry a cell phone?
  • Have you on occasion called in prescriptions to a pharmacy over your cell phone when you’re not in your office?
  • Of course, you don’t have the patient chart with you?
  • On those occasions you may not have charted the call-in?
  • So looking back at your chart several years later, even if there is no entry on a particular date, the patient may have called on that date?
  • And asked for the medication?
  • And you or a member of your staff may have called it in to the pharmacy?
  • Even though there is no entry?
  • And you have no independent recollection apart from what is written in your patient chart of what you may or may not have prescribed or called in to my client’s pharmacy for Ms. Smith on June 1, 2004, do you?
  • And Ms. Smith did have high cholesterol levels, a condition for which Mevacor would have been an appropriate medication?
  • You had prescribed Mevacor for her prior to 2004, right?
  • How then can you say with any certainty that you did not prescribe Mevacor for her on June 1, 2004?