On October 23, a New York physician was charged with healthcare fraud for allegedly receiving kickbacks in exchange for ordering medically unnecessary brain scans. On November 14, Dr. Kenneth Fishberger, who had a medical practice in Port Jefferson, NY, pleaded guilty to one count of conspiracy to commit health care fraud.
According to the charging documents, Fishberger, an internist in Long Island, N.Y., was a licensed medical doctor in the State of New York for approximately 47 years. It is alleged that from approximately June 2013 through December 2019, Fishberger conspired with others, including a principal for a mobile medical diagnostics company that performed transcranial doppler (TCD) scans, and a salesperson for the company, to order hundreds of medically unnecessary TCD scans in exchange for kickbacks. TCD scans are brain scans that measure blood flow in parts of the brain – It is further alleged that Fishberger and his co-conspirators used false diagnoses to order the unnecessary brain scans, for which a co-conspirator would submit claims to Medicare and other insurance companies, including private insurance companies, on behalf of the medical diagnostic company for payment. In exchange, Fishberger was paid cash kickbacks of approximately $100 per test. According to the charging documents, the scheme resulted in fraudulent bills of approximately $891,978 to Medicare and private insurance companies.
The charge of conspiracy to commit health care fraud provides for a sentence of up to 10 years in prison, three years of supervised release, and a fine of up to $250,000.
Fishberger will be sentenced on February 25, 2025.
Previous Wrongdoing
In April 2004, the New York State Department of Health took disciplinary action against Dr. Fishberger, consisting of “Censure and reprimand with probation commencing upon the active practice of medicine in New York State for three years.” That disciplinary action in 2004 stemmed from inappropriate prescription of controlled substances to four patients between 1991 and 2001 and failure to maintain accurate records. Dr. Fishberger complied with the probation terms.
PogoWasRight did not find any current disciplinary action pending against Dr. Fishberger. But 20 years after he was disciplined for inappropriately prescribing and failure to maintain accurate records, he was accused of inappropriately referring for brain scans and creating false diagnoses/records to support that. PogoWasRight anticipates that we will eventually see another case opened by the DOH against Dr. Fishberger that will permanently bar him from practice in New York State.
Do the Patients Know?
But what about the patients who were given false diagnoses to justify the brain scans? Have they been spending the last years concerned that they might have a brain disorder that just hasn’t shown up yet? According to the plea agreement, Fishberger signed prescriptions and orders for approximately 480 TCD ultrasounds, which the TCD company used to fraudulently bill insurance companies approximately $891,978. Fishberger was paid approximately $48,000.00 in kickbacks for his role.
PogoWasRight reached out to the U.S. Attorney’s Office in Massachusetts to ask what happens in these cases — do the patients ever get notified? A spokesperson for the U.S. Attorney’s Office replied that the insurers were being notified.
Hopefully, the insurers will then reach out to their insured members to tell them that what happened in the past was fraudulent. And hopefully, people will get their medical records corrected if they shows a suspected brain disorder that was fraudulent.
Updated to add information contained in the plea agreement.