By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
In other words, the insurance company has no right to tell a doctor what he or she can charge. The company can simply decide whether or not it wants to pay.
In Birenbaum's cases, Aetna refused to pay. So Birenbaum, in his characteristic cheeky style, sicced a collection agency on the Hartford-based insurance giant.
Aetna, through a supervisor in its North Carolina claims office, wrote the collectors: "We do not have a contract or commitment to Dr. Birenbaum. If he has outstanding debts with his patients, requests for collection should be directed to his patients, not their insurance carrier."
So much for any righteous claims by Aetna that it had its customers' interests foremost in mind.
Before the medical board considered Birenbaum's case, it offered him a deal: Take a public reprimand and a year's probation, and that would be that. "My lawyer told me, 'Aetna's one of the biggest lobbyists in the state. Take probation.'" Birenbaum recalls. "I said, 'Fuck 'em. I didn't do anything wrong.'
"My practice was going great. I was getting referrals like crazy. I was asked to give lectures all over the state. Here they wanted me to put my name in the medical bulletin with drug and alcohol abusers, the impaired doctors, the ones who are having sex with their patients. I didn't want my name in that."
Instead, the board looked at the same evidence as the hearing examiner, decided its witnesses were credible, and on February 27, 1993, voted unanimously to revoke Birenbaum's license for flagrant overcharging. The decision, and Birenbaum's billing practices, landed in the front-page lead box of The Dallas Morning News, and the story ricocheted around the state.
There were quotes from Whitley: "How would you feel if Dr. Birenbaum spent anywhere between two and three minutes, up to 15 minutes with a patient, and charged the patient $1,000 a day?"
And quotes from a diary kept by Dana Dupree, whose husband, Charles, was among the seven patients whose cases were examined: "He always brings up the fact that he's not getting paid," wrote the Coppell woman of her doctor. "He does not have the time to answer questions, and when he does, he's not giving the full attention as when he was getting paid."
Birenbaum denied those accusations and developed a variety of defenses and explanations for why the medical board would be going after him. "I've always thought there was a conspiracy," he says now, pointing a finger at competing oncologists, or what he claims is lingering antisemitism in the Dallas medical community. His attorney developed the theory that the medical board had been under pressure from the Legislature at the time for not coming down hard enough on offending doctors.
Court records show that Birenbaum's lawyers pursued some of his conspiracy theories, but with no results.
Instead, it was the sloppiness of the board's rules and huge holes in its case that undid its action against Birenbaum.
Birenbaum's attorneys obtained a ruling from state District Judge Jerry Dellana of Austin allowing him to continue practicing while he appealed the board's decision.
Five months later, Dellana reversed the board's order, citing a lack of substantial evidence. And in January 1995, the Court of Appeals in Austin gave Birenbaum his final victory, although it turned out to be a somewhat qualified one.
The court found that Birenbaum had indeed been overcharging his patients, which the panel defined as "charging excessively and beyond a due rate."
"The [medical board] correctly notes in its order that Birenbaum charged for certain services--consultations with himself when he was the attending physician, chemotherapy, administration, isolation, hyperalimentation, and platelet infusion--which the board's witnesses all testified should have been included in the regular hospital charge," the published opinion reads. "In addition to charging separately for each of these services, Birenbaum also billed for the normal hospital charge, thereby resulting in double-billings."
The problem with the board's case, however, was that it did not prove that Birenbaum was "flagrant and persistent." Its witnesses had no idea about how much time Birenbaum had actually spent with the seven patients whose cases were under review.
Meanwhile, Birenbaum had on his side testimonial letters, such as this one from the wife of one of his cancer patients: "Doctor Birenbaum not only used all his medical ability, but he has given personal attention to my husband and myself. We have had to contact him after hours during the night, on weekends, and many times during office hours by phone. Dr. Birenbaum has never failed to return any of our calls [and] never billed the insurance company for these services."
The appeals court found it troubling that Birenbaum's practice included more than 375 patients, but the board chose to prosecute its complaint using "seven very complicated cases."
"My lawyer made mincemeat out of them; he rang their bell," says Birenbaum. "They decided, 'We'll get him, anyway.'"
A source close to Birenbaum, who declined to be named, said the doctor no doubt had figured out how to maximize his income by the way he prepared his bills. Still, he never charged for services he didn't render, nor were there questions about the level of care.