William N. Sterling, Judge Superior Court County of Los Angeles (Super. Ct. No. BA361030-01)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
A physician, like any other person, knows that he cannot lawfully obtain money based upon a fraudulent representation. This is theft by false pretenses. (People v. Shirley (1978) 78 Cal.App.3d 424, 436.) A physician should also know that he cannot lawfully submit a Medi-Cal claim representing that he is supplying an expensive FDA-approved intrauterine device when, in fact, he is supplying a cheaper non-FDA-approved intrauterine device.*fn1
Eduardo Jose Guzman, a licensed obstetrician-gynecologist, appeals from the judgment entered after his conviction by a jury of Medi-Cal fraud in violation of Welfare and Institutions Code section 14107, subdivision (b)(1). The jury returned a guilty verdict on a single count alleging that he had submitted a fraudulent Medi-Cal claim for the insertion of an intrauterine device (IUD) into patient Blanca G. The court suspended the imposition of sentence and placed appellant on formal probation for 36 months. As a condition of probation, appellant was ordered to perform 90 days of community service.
Appellant contends: (1) the trial court erroneously upheld the validity of a search and seizure that he had challenged through a Penal Code section 995 motion,*fn2 (2) the trial court erroneously admitted evidence "concerning the purported illegality of [appellant's insertion of] non-FDA approved IUDs in his patients," (3) the evidence is insufficient to show that appellant intended to defraud Medi-Cal, and (4) the Medi-Cal claim for Blanca G. "is not false or fraudulent as a matter of law." We affirm.
The Medi-Cal program supplies a "provider manual" (manual) to physicians who provide services under the program. The manual informs physicians how to submit claims and specifies a unique procedure code for each allowed service.
Since November 2001 the manual has specified a procedure code of X1522 for the insertion of a ParaGard IUD. In the wake of the "Dalkon shield debacle," the FDA has focused on the safety of the IUD. The ParaGard, engineered and built to rigorous specifications, is the only "Copper T" type IUD approved by the FDA. Medi-Cal will pay only for FDA-approved IUDs. (3RT 417) A physician cannot lawfully insert a non-FDA-approved IUD into a patient. ParaGard IUDs are manufactured in New York by Teva Pharmaceuticals. Until April 2006 Medi-Cal paid $261.80 for each insertion of a ParaGard IUD. In April 2006 the payment increased to $374.16 per IUD. At the time of trial in August 2010, a single ParaGard IUD cost $392.
From 2004 through February 2006, appellant's office billed Medi-Cal for the insertion of 176 IUDs under procedure code X1522. For these IUDs, Medi-Cal paid appellant $45,919.72. During this period, appellant did not use the ParaGard IUD. Instead, he used a cheaper Copper T type IUD manufactured in Mexico by Dentilab.
The actual Medi-Cal billing was done by appellant's employees (billers). Appellant did not mention the name "ParaGard" to the billers, nor did he tell them to use procedure code X1522. The billers knew to use code X1522 for the insertion of an IUD because the code was "in the computer."
On February 16, 2006, Medi-Cal fraud investigators went to appellant's office and asked him to provide copies of invoices for ParaGard IUDs billed to Medi-Cal in 2005. He was expressly told that he could be reimbursed only for this specific IUD. Appellant "said he couldn't find the invoices right now but would send them in." On February 23, 2006, the investigators received in the mail three invoices from appellant. The invoices were from Alpine Oxygen Home Care (Alpine Oxygen) and were dated in 2005. The invoices showed that Alpine Oxygen had sold 45 Copper T IUDs to appellant at $378 each. The invoices did not specify the brand of the IUDs.
The invoices were forgeries. Alpine Oxygen never sold IUDs. The owner of Alpine Oxygen never had any contact with appellant, and he did not ...