Very few things are as essential to a modern society as an affordable and reliable health care system. Despite its importance, creating affordable and high quality health care can be a significant challenge. While there are many steps that can be taken to limit the cost of health care, one important aspect that is often overlooked is the importance of limiting health care fraud.

Health care fraud is simply utilising the health care system to collect unlawful and undeserved money. Criminals seek to profit off of fraudulent health care claims, and can do so in a variety of ways.  Because of this, it can be difficult to stop. However, it presents a huge burden on the health care system, as fraud steals from hospitals, insurance companies and government agencies. This results in the overall cost of health care increasing for all.

Because of this, efforts are being made to crack down on those who commit fraud. As this has occurred, the difficulty of legally proving when fraud has occurred becomes more important. This has raised numerous issues surrounding the role of circumstantial evidence in health care fraud. Circumstantial evidence is considered anything that provides evidence from which other facts are to be inferred. In other words, circumstantial evidence provides information from which certain things can be assumed, but are not necessarily proved. Contrast this with direct evidence, in which the information does prove the crime in question. For example, a witness might provide circumstantial evidence in a murder trial if they can attest that they heard gunshot and saw the accused running away from the area of the gunshot while carrying a gun. It might be assumed from that information that the accused was the one who shot the gun, but it cannot be proved from that evidence alone.

This is important in health care fraud because it can often become difficult to ascertain direct evidence of crime. Unfortunately, unless a whistle-blower or Insider to the fraud cooperates the investigation or provides direct evidence, circumstantial evidence is often all that is available in fraud cases. However, this does not mean that it is impossible to convict criminals of fraud.

One example that shows both the difficulty of obtaining direct evidence and the ability to convict despite that lack of evidence is the case of a husband and wife from the United States. Mr. and Ms. Davis were involved in a fraudulent scheme to sell health care equipment from a company that Mr. Davis owned. They did so by creating the Kentucky Black Lung Association, which claimed to seek to help miners with black lung disease. This association sent miners to a clinic where Ms. Davis volunteered, enabling her to write referrals for patients to get equipment from Mr. Davis’s health care equipment company. This equipment was paid for by claims to insurance companies. Where this case became difficult was in establishing intent to defraud. While they were clearly in violation of anti-kickback laws by referring patients to a specific clinic and company in order to profit, there was only circumstantial evidence to indicate intent to commit fraud. However, as further circumstantial evidence came to light, such as the fact that nearly all of Mr. Davis’s business came from the clinic Ms. Davis volunteered at, and the fact that Ms. Davis had signed forms stating the need of the equipment that she was not qualified to sign, the Davises were convicted of fraud and sentenced to prison.

This case shows the difficulty of conviction, because no single piece of evidence was capable of proving the intent to defraud, which is generally required to be proven in order to convict. For example, while Ms. Davis was clearly in the wrong for signing forms she was not qualified to sign, this does not prove her intent to defraud, as she could have argued she was simply confused about the requirements. Only through the accumulation of various pieces of circumstantial evidence could fraud be proven, illustrating the difficulty of convicting fraud, and at the same time the importance of circumstantial evidence.

While the case of the Davises resulted in conviction, many times it is much harder to prove intent of fraud, especially when the fraud is on a larger scale than simply two individuals. Much of current issues of health care fraud include larger schemes involving companies or larger groups of people. Because of this difficulty, the importance of whistle-blowers has grown. Whistle-blowers often face intense scrutiny, and yet because of their ability to ascertain information not otherwise available, they are often able to provide essential direct evidence, which can be critical in proving guilt in health fraud that circumstantial evidence cannot. While the various situations demand different approaches to communicating and providing evidence, there is generally not a need for whistle-blowers to photograph documents as they are uploading them, unless they believe there is a risk of those documents being corrupted or destroyed. However, depending on the context and the law, certain photographs may represents a violation of privacy laws, and so photographs should be thoughtfully considered before being utilised in this arena.

Regardless of those issues, health care fraud can be fought and convicted. Circumstantial evidence often plays a key role in the process, yet by its very nature is it is often limited in what it can prove. Because of this, direct evidence is often needed, resulting in the important role of whistle-blowers in the conviction of those committing health care crime. As the entire health care system works for address this issue, progress can be made to fight health care fraud.