Cassim, M.D. v. Bowen

824 F.2d 791 (1987)

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Nature of the Case

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Facts

P is a licensed and practicing surgeon in Dallas, Oregon. Forty percent of the income from his practice comes from Medicare patients. In early 1985 OMPRO decided to examine all surgery performed by P during a prior six-month period. In April 1985 OMPRO informed P and the hospital where he practiced of its review. OMPRO checked the medical records of eighty of P's patients and identified thirteen 'gross and flagrant' violations of P's obligation under the Social Security Act to adhere to professionally recognized standards. OMPRO did not discuss the cases with P. Nor did it contact any of the patients, the attending nurses, the other physicians involved in the care of the patients, or the hospital's quality assurance committee. OMPRO did not seek a complete copy of all medical records related to the care of the patients. It lacked some x-rays, scans, and other lab data. OMPRO informed P of its findings, gave P thirty days 'rebut or mitigate' its findings and allowed him to make a 'written request to meet with representatives of OMPRO to discuss case specifics.' Its preliminary recommendation was exclusion from the Medicare program. P met with OMPRO's surgical review panel and medical director. P was not allowed to present witnesses or to confront adverse witnesses. P was represented by counsel. A transcript was made of the meeting. P presented his side and introduced exculpatory documentation, including lab data missing from OMPRO's records. OMPRO dropped five of the thirteen alleged violations. OMPRO recommended that P be suspended for a minimum of one year. P was given 30 days to submit 'any additional material which affects the recommendation to exclude you from participation in the Medicare program.' P submitted additional material. D affirmed OMPRO's findings. It excluded Cassim from Medicare for one year and informed him it would publish 'a notice in a local newspaper to advise the community of the effective date, the duration, and the reason for this exclusion.' P had a right to appeal the ruling to an administrative law judge (ALJ). P sought a preliminary injunction. P claimed the regulations violated due process. The court denied the preliminary injunction. P appealed.