Several recently reported cases highlight the growing risk physicians face if they succumb to competitive pressures, especially offers of remuneration from labs, pharmacies, home health agencies and other providers to whom they refer. In many cases, the effort to recoup fees may come years after the physician received and spent the fees, with no insurance coverage for the defense of the claim and/or to satisfy any potential liability.

Bankruptcy Trustee Recoups Specimen Handling Fees Paid to Physicians

The bankruptcy trustee for a diagnostic laboratory (Lab) filed over 1,000 lawsuits against physicians attempting to recoup, for the benefit of the Lab’s creditors, what he claimed to be excessively large specimen processing and handling fees paid to physicians. In 2015, the Lab agreed to pay $47 million to the U.S. Department of Justice (DOJ) to resolve allegations that it paid kickbacks to physicians in connection with these fees and the waiver of patient co-pays and deductibles. As a result, the trustee maintained that each physician payment also constituted a fraudulent transfer under the Bankruptcy Code and sued to recover the payments. Similar allegations were also made by the trustee to recover payments under state fraudulent transfer laws.