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Court of Appeal:
Pain-Doctor Must Stand Trial on Insurance Fraud Counts
Panel Says There’s a ‘Strong Suspicion’ He Tried to Cheat Insurer but Blocks Prosecution on Perjury Counts
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has blocked the prosecution of a pain management doctor in Riverside County on three felony counts of perjury but has given the green light to trying him on two counts of insurance fraud, saying the evidence raises a “strong suspicion” that the physician attempted to bilk a workers’ compensation insurer through a ruse.
Tuesday’s decision comes in response to a petition for a writ of prohibition challenging the denial by Riverside Superior Court Judge David A. Gunn of a motion under Penal Code §995 asserting that there was no probable cause for the magistrate, following a preliminary hearing, to bind the defendant over for trial. Relief was partially granted.
The defendant, Dr. Sanjoy Banerjee, in 2010 founded, and continues to operate, Pacific Pain Care Consultants (“PPCC”) in the City of Wildomar and other locations. In 2014, he set up Kensington Diagnostics, LLC, a “clinical diagnostic and reference laboratory” and Rochester Imperial Surgical Center, LLC, an “ambulatory surgical center,” at the same site in Wildomar.
Banerjee referred patients to Kensington and Rochester, and those entities billed Berkshire Hathaway Homestate Companies (“BHHC”), a workers’ compensation insurer, for their services.
No Perjury
The perjury counts were predicated on Banerjee’s affirmation in reports to BHHC saying:
“I have not violated Labor Code section 139.3, and the contents of this report and bill are...true and correct to the best of my knowledge. This statement is made under penalty of perjury.”
Subd. (a) of §139.3 bars a physician from referring patients to an entity in which that physician has a “financial interest” where the fees will be paid through workers’ compensation insurance.
There was no violation, hence no perjury, Justice Richard T. Fields said in an opinion filed on Tuesday—but not because Banerjee purportedly made a disclosure to patients of his interests in Kensington and Frochester, as required by subd. (e). Aside from the fact of such compliance being in doubt, Fields declared in dictum, even if there had been a disclosure, it would not have formed an excuse for breaching subd. (a).
Banerjee is exonerated of perjury, he said, in light of §139.31(e) which provides:
“The prohibition of section 139.3 shall not apply to any service for a specific patient that is performed within, or goods that are that are supplied by, a physician’s office, or the office of a group practice....”
Fields wrote:
“To save the physician’s office exception (§ 139.31(e)) from an unconstitutionally vague interpretation, we construe the statute as allowing a physician to render services to patients through separate legal entities, including entities in which the physician has a financial interest, provided that the services are rendered within the same ‘physician’s office’ or the office of a group practice.”
Insurance Fraud
The insurance fraud counts were alleged under Penal Code §550(a)(6) which proscribes knowingly making or cause to be made “any false or fraudulent claim for payment of a health care benefit.”
Fields provided this discussion:
“The evidence showed that, between 2014 and 2016, Banerjee presented false and fraudulent claims for health care benefits to BHHC through Kensington and Rochester, with the specific intent to defraud BHHC. Banerjee’s billings through Kensington and Rochester were for substantially higher amounts than Banerjee had previously billed BHHC for the same or similar services that he provided solely through PPCC, and that BHHC had been billed by the group practice with whom Banerjee had formerly practiced. Banerjee did not inform BHHC that he owned and operated Kensington and Rochester; and in one instance, Banerjee double billed BHHC for two epidural injections provided to the same patient on the same day, through PPCC and Rochester….”
‘Sham Entities’
The jurist continued:
“The record also supports a strong suspicion that Kensington and Rochester were sham entities, and that Banerjee formed Kensington and Rochester with the specific intent to defraud BHHC through his Kensington and Rochester billings. The Kensington and Rochester billings gave the appearance that the entities were not part of Banerjee’s medical practice but were stand alone, diagnostic testing and surgical centers, operating independently of any physician’s office. But when BHHC’s investigator…visited Banerjee’s Wildomar location, he discovered that Banerjee was operating Kensington from ‘a small closet-type room,’ and that Banerjee was operating Rochester from a ‘converted treatment room.’ The evidence supports a strong suspicion that Banerjee had no business reason for forming Kensington and Rochester, other than to use them to present highly inflated billings for his diagnostic and surgical services to BHHC.”
The case is Banerjee v. Superior Court, People RPI, 2021 S.O.S. 5590.
Banerjee on June 18 incurred a stipulated public reprimand from the state Medical Board based on misconduct unrelated to the matters discussed in Tuesday’s Court of Appeal opinion. Allegations centered on excessive administration of steroids.
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