On February 18th 1999 it was executed the preventing detention order issued by the preliminary investigation judge by the means of which he applied the measure of house arrest against the five consultants of the S. Raffaele Hospital of Milan for the crimes of fraud and forgery of a public deed. They would have fulfilled and undersigned case sheets and hospital discharging cards of several patients certifying improper admissions with the aim to get reimbursements greater than the ones related to the normal outpatient services. The accusatory conjecture which the preventing detention order lays on is the systematic fraudulent employ of the D.R.G. regime, by the means of stay in hospital sheets falsification, carried out by consultants to the damage of the Region and with the purpose to obtain improper reimbursements in favour of the “San Raffaele” hospital. In details, in the preliminary investigation judge's order it has been charged that in the wards were certified never occurred admissions to carry out clinic tests, that is with a duration longer than the effective one, and at any extent, unjustified at all since the test could have been carried out as well under outstanding regime. Such praxis allowed physicians, according to the accusatory conjecture, to make the ward obtain a greater unreal 'hospital productivity' and, correspondingly, an undue increment of the reimbursements paid by the National Health System to the hospital structure, hence an economic damage to the Region Lombardy Entity. So the facts charged to physicians root within the clinic file related to the “San Raffaele” Hospital wards. One of these wards, neurology, holds the “ Sleep Centre “. Such centre cures new at all pathologies and manages clinic tests operating way related to it without a specific law disciplining it accurately, both under quality and quantity profile. The 1996 Nomenclator, assumed by the order as the law parameter for the irregularities charged to the persons under investigation, does not reflect at all the scientific-clinic reality related to the cure of sleep, limiting to define the poly-sleepgraghic test as a “day and night test and with special methods “ and foreseeing at any extent, a reimbursement of only 270.000 lire. First of all, the Nomenclator, gives an only vague description, uncompleted and anachronistic for a therapy still on experimentation, highly innovative and in steady evolution, and the corresponding schedule of rates is inadequate at all and hard to apply. The statements given by the head of ward when interrogated by the Public Prosecutors have widely highlighted the high economic cost related to tests at the “Sleep Centre “ and , mainly related to the poly-sleepgraghic test: indeed it requires the steady presence of technical and medical personnel, sophisticated technological equipment employ, as well as an analysis of the diagnostic results particularly complex, taking at least 4/5 hours of study by the physician. Such circumstances show clearly the wrongness of the definition of the poly-sleepgraghic test given by the Nomenclator as a mere outpatient test, instead of a laboratory test. Just for the above mentioned reasons, the consultant required for many times, without success, the National Health Service managers in order to have explanations about the application modalities of the D.R.G. system. To the described law inadequacy regarding the sleep tests and particularly the poly-sleepgraghic test, to the indifference showed by the National Health Service managers, it is to add, on a side, the requirement to contain the waiting list of patients affected by sleeps disturbs (that normally was three months lasting) and, on the other side, physicians were required by the hospital administration organs to balance costs, being it necessary for the survival of the ward at matter. Such considerations stated in front of the Public Prosecutors, put in light that the admission regime adopted in the cases of complete laboratory poly-sleepgraghic test, was required by the absolute necessity to supply patients with an adequate to their peculiar pathologic condition therapy. So it concerns an inescapable clinic exigency. During 1996, it was put on disposal of the ward some portable new invention apparatus to record the several kinds of poly-sleepgraghics, whose adoption could at least relieve the congestion of the patients waiting list. Those equipment, of very high economic value (some cost more than forty millions lire) required at least two contacts with the hospital structure to be applied and removed, and normally at least two 'intermediate' contacts to change batteries and/or the recording cassette and/or to control its working. Both for application and removal it was indispensable the presence of technique or medical personnel. So the described summary of the therapeutic intervention justified its integration into the complete DRG regime, since featured by entrusting the patient (often few attentive in safeguarding the equipment) the very high economic value technologic instruments, and requiring a steady contact with technique and medical personnel of the hospital structure for the clinic efficacy itself. The objective and subjective ratio underlying the admission modalities in the DGR regime, referring to the ward head, must therefore be individuated in the requirements of balancing the high costs of the tests (poly-sleepgraghic test) and of ensuring the most adequate therapy according to the single pathologies of the patients in his cure. In other terms, the behaviour of the head of the hospital ward seems objectively and subjectively imprinted, not to the pursuit of profit, but to prevent the closing of the Sleep Centre for economic losses, on a side, and on the other side to ensure an adequate and efficacy therapeutic service to patients in his cure. This is the correct interpretation of the facts the S. Raffaele consultants are charged of by the order as proved by the following considerations: as already stated precisely, it has come out for the first time during the physicians' interrogatories, the circumstance in order to which the lack of disposals about tests at the “Sleep Centre “, the indifference shown by the National Health Service managers, the requirements sent by the hospital administration organs together with the inescapable clinic need to reduce the patients waiting list, supplying the most effective and adequate therapy, have been the causes provoking the complete laboratory poly-sleepgrama under D.R.G. regime. Among others, physicians have earned nothing from admission since they could benefit from participation only if they carried out outpatient services and not admissions. Such objective circumstances prove clearly that the ward head not only had no economic gain by allowing admissions, but should they undergone a pecuniary loss just caused by carrying out tests under D.R.G. regime instead of under outpatient regime. Therefore the judicial investigation is in reality the result of a lack of provisions and of an obscure interpretation of incomplete norms already existent. So it is to be hoped for that the Ministry of Health spares no efforts to achieve adequacy and clearness about norms, to avoid scandals fitting nobody and to supply adequate treatments to patients.

Daria Pesce Avvocato Penalista

 

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