I disagree that "intent" will be determinative in this matter. These are "heavy hitters" that are suing you. If you have no legal counsel, they will crush you.
The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
Get an attorney asap. You are in difficult and complex territory. You will be doing yourself a disservice if you try to handle it yourself.
The biggest issue here, is damages. Absent some specific statute defining insurance fraud, the common law provides as follows - in order to establish fraud, there must be harm. If you can establish the insurance company would have been billed the same regardless of the error, I believe you have a chance to prevail. Of course, I would have to review the Complaint to give you a more comprehensive answer. Please feel free to call me at 408 796-9616 for a free consultation.
If you are a California-licensed professional, your assumptions about intent may be severely misplaced. Under the law, your intent can be inferred from your special training, education and licensure requirements. What's more, whether you are successful or not in the crim case, you are likely to face license revocation charges by the State. You have no 5th Amendment rights not to testify against your self in those proceedings. Specific intent is rarely a sound defense in license revocation cases because the degree of skill, knowledge and experience attributable to the licensee.
Your post does not make clear who "we" is, but if there is a staff person also facing charges for billings that accrued to your financial benefit, you need a seriously skilled and experienced criminal defense attorney attorney right away -- like last week. The prosecutors will pry the two of you apart with a deal for one, and it just gets worse from there. Get a defense lawyer ASAP.
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It sounds like you are trying to understand the law regarding criminal intent which is a good idea. The facts are important and you need to have an attorney analyze and evaluate the lawsuit, the facts and surrounding circumstances. It will also be an issue if you are an outside or in-house biller; whether the superbill or billing information was provided to you as the biller by the medical providers, and the codes billed. The facts regarding the other parties charged (medical providers etc.) will be important as well.
The amount at issue will be important. By the way was it a 99245 and not a 90245?
In cases such as these the costs of defense can be high especially when fighting insurance carriers so it is important to fully evaluate the case at an early stage. If you would like a consultation, feel free to call or email me at my office. I have a great deal of experience in civil insurance fraud cases.
Health Care insurance fraud is a big Issue Nationwide.
Coding is very important and it appears from the facts that you used that coding in more than one occasions. Many issues can sustain a viable defense in your case.
You need to explore those issue and be advise by a Certified Fraud Examiner or a Lawyer that is a Fraud Examiner. As other attorneys stated intent is a defense but if you had more than one occasions that you were using the wrong code then this can not "fly" ...Few of the attorneys in avvo are trained and certified fraud examiners and they worked in cases like yours.
This not a traditional criminal fraud practice issue.
Disclaimer:Attorney and Fraud Examiner.One of few that are Certified Fraud Examiners (CFE). The information contained in this website is provided for informational purposes only, and should not be construed as a legal advice on any subject. No recipients of content from this site,clients or otherwise,should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this website contains general information and may not reflect current legal developments, verdicts or settlements. The Karamanlis Powers Law Offices expressly disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this website, weblogs, twitter, facebook, google+. *the certification is not a specialty recognized by the California State Bar.