COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60302 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MOHSIN IJAZ : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 249719 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. J. MICHAEL MURRAY, ESQ. CUYAHOGA COUNTY PROSECUTOR BROOKE F. KOCAB, ESQ. BY: MICHAEL BEDNAR, ESQ. BERKMAN, GORDON, MURRAY & PALDA ASSISTANT COUNTY PROSECUTOR 2121 The Illuminating Bldg. The Justice Center 55 Public Square 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Mohsin Ijaz, was convicted of seven counts of violation of R.C. 2913.02, theft, sentenced to six months and a $1,500 fine for each count and ordered to pay restitution. The prison sentence was suspended and appellant was placed on two years probation on condition that he perform one hundred hours community service and pay the fines and restitution. On appeal appellant assigns six errors for review. I THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTIONS FOR ACQUITTAL MADE AT THE CLOSE OF THE STATE'S CASE, AT THE CLOSE OF ALL THE EVIDENCE AND POST-TRIAL BECAUSE THE STATE A) SUBMITTED NO EVIDENCE THAT THE APPELLANT KNEW THE LABORATORY TESTS WERE NOT COVERED BY THE HOR PARTICIPANTS' HEALTH INSURANCE CONTRACTS; B) FAILED TO PROVE THAT MR. IJAZ KNOWINGLY SUBMITTED FALSE OR MISLEADING INFORMATION ON THE CLAIM FORMS; C) FAILED TO PROVE THAT MR. IJAZ SPECIFICALLY INTENDED TO DECEIVE THE INSURANCE COMPANIES; AND D) FAILED TO PROVE, BY COMPETENT EVIDENCE, THAT THE HOR CLAIMS WERE NOT COVERED BY THE PARTICIPANTS' INSURANCE CONTRACTS. Appellant is a bio-chemist who owns a medical laboraty, Bio- Med Lab, which, among other things, runs tests on blood. Appellant hired Jogannadram Kottha to set up Health-O-Ramas (or HOR) at shopping malls and solicit participants who would have their blood tested (or screened) for cholesterol level and other information. The participants would not be billed but an insurance number would be taken and a claim form filled out with the required information: the participant's name, number, the - 2 - diagnosis code and the referring doctor's name. Appellant provided the code and the name of the referring physician but the doctors had never seen the participants before the tests. After the tests the claim would be submitted and the participants would be sent a letter with the results (without explanation) and the name of a doctor (that they didn't know) who could review the results with him or her if the patient wished. Many of the claims were paid because the practice is to pay if the claim form provides a diagnosis code and referring physician's name to indicate that the test was provided or ordered by that physician for a diagnostic purpose. Met Life Health Care Network, Central Benefits (Blue Cross/Blue Shield), Nationwide Insurance Co., Travelers Insurance Co., Blue Cross/Blue Shield of Ohio, Community Mutual Insurance Co, and Aetna Insurance Co. all paid Bio-Med after claim forms were submitted by Bio-Med for tests performed on participants at the Health-O-Ramas. Michelle Eichenmiller and Irene Doran were two of the participants in the blood screening. Eichenmiller and Doran testified that they were approached at a shopping mall and offered a cholesterol test for which, they were told, their Blue Cross/Blue Shield insurance would pay. (Tr. 6 and 24.) Neither had been directed by a doctor to have any tests. (Tr. 10 and 26.) Both later received letters from Bio-Med Lab which directed them to contact their own doctor or - 3 - Drs. Matthew Frantz and Eugene Pogorelec, respectively, for a review of the results. (Tr. 7 and 27.) Neither knew her "reviewing doctor." (Tr. 8 and 27.) Blue Cross/Blue Shield paid most of the cost ($204.75 of $235.00) and did not bill them for the difference. (Tr. 9 and 29.) Regina Incorvati stated that she worked for appellant and he supplied her with the diagnosis code and doctor's name that was required on the claim form to be submitted to the insurance companies. (Tr. 369.) Each form had a space for "diagnosis" and for "referring physician." Paula Simon, claims manager for Met Life Health Care Network, testified that Met Life does not pay if the test was not ordered by a doctor. (Tr. 91-92.) The claims were paid because a doctor's name was put in the claims form's "referring doctor" space, as required. (Tr. 92.) Every claim form must have a diagnosis code. (Tr. 94.) "Riders" may change benefits but do not alter the exclusions (Tr. 126) which provide that the primary care physician must provide, arrange or approve the test. (Tr. 118 and 126.) David Grimm, health insurance fraud investigator for Central Benefits, Blue Cross/Blue Shield, testified that Central Benefits always requires that the test must be medically necessary, ordered by a licensed physician and conducted for a valid diagnosis. (Tr. 136-137.) - 4 - Barbara Bartrum, program integrity division manager for Nationwide Insurance Co., testified that it handles Medicare claims which are covered by a standard contnract with no "riders." (Tr. 189.) Nationwide does not pay for routine screening (Tr. 176) and will not pay for blood tests if not reasonable and necessary (Tr. 173) and accompanied by the doctor's name and/or his or her diagnosis (Tr. 177). James Reese, customer service manager for Travelers Ins. Co., testified that screening tests are covered only if they were reasonable and necessary and incurred for therapeutic treatment of illness or injury (Tr. 204), are accompanied by a diagnostic code (Tr. 209) and were made or recommended by a licensed physician in connection with a diagnosis of bodily injury or sickness (Tr. 212). Kathy Shortridge, Community Mutual Blue Cross/Blue Shield research coordinator for financial investigations, testified that a claim is paid only if the patient was referred by a physician (Tr. 235), there was a diagnosis made (Tr. 253) and the test was medically necessary (Tr. 241). Debra Conklin, Aetna's fraud investigator, testified that the tests were not payable if they were not ordered by an attending physician (Tr. 270) and if a doctor's name was in the "referring physician" block Aetna assumed it was ordered (Tr. 277). - 5 - Timothy Lea, Blue Cross/Blue Shield of Ohio's fraud investigator, testified that tests must be ordered by an attending physician based upon a legitimate diagnosis or symptom and must be medically necessary. (Tr. 292.) United States Postal Inspector Robert Dash testified that he interviewed appellant during his investiation. He stated that appellant told him that prior to the tests none of the participants screened in the Health-O-Rama had seen the letters' "reviewing doctor" (listed on the claim form as a "referring doctor"), that this was the first time that he had billed without a doctor having ordered the tests and that he provided the diagnosis code and the name of the "referring" doctor (Tr. 512). It is apparent from the evidence that even without the evidence concerning each company's policy the state proved that appellant knew that a claim would not be paid unless a diagnosis code and a referrring physician's name were provided. He had never previously billed for tests not ordered by a doctor. He went to great lengths to concoct a diagnosis code (metabolism disorder or hyperlipidemia) to create the impression that an ongoing process of examination and diagnosis was being conducted by the "referring physician" when in fact there was a code for the routine laboratory tests and no reasonable person could consider a doctor who never saw the patient until after the test (and not necessarily then) to be a "referring doctor." That term obviously meant the doctor who sent the patient for the test. - 6 - The claim forms filled out were clear: a diagnosis and referring physician were required. In the absence of either a diagnosis or a referring physician appellant manufactured both and thus knowingly and by deception obtained the money paid on the claims. A motion for acquittal is properly denied if the evidence is such that reasonable minds could reach different conclusions as to whether or not the material elements were proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261. The motion for acquittal was properly denied. Assignment of error No. I is overruled. II THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S REPEATED OBJECTION TO THE STATE'S WITNESSES' CONCLUSORY OPINION TESTIMONY THAT THE TERMS AND CONDITIONS OF THE HOR PARTICIPANTS' UNDISCLOSED HEALTH INSURANCE CONTRACTS DID NOT PROVIDE COVERAGE FOR THE HOR CLAIMS, AND TO THE STATE'S WITNESSES' VAGUE REFERENCES TO INCOMPLETE AND IRRELEVANT INSURANCE DOCUMENTS IN AN APPARENT EFFORT TO BOLSTER THEIR CREDIBILITY. Appellant contended that the state had to prove that the claims were not covered by the insurance policies of the participants and that Evid. R. 1002 requires that proof of the content of a writing (the policies) be established by the writing itself rather than the testimony of the insurance company employees concerning the coverage provided by the policies. Evid. R. 1002 states as follows: To prove the content of a writing, recording, or photograph, the original writing, recording, or - 7 - photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio. (Emphasis added.) The witnesses testified that the policies did not cover a test unless it was pursuant to a diagnosis and/or performed by, approved by or directed by a physician designated as the "referring physician." (See discussion of assignment of error No. I.) The individual contracts of the participants at the Health-O-Ramas (or their employers, in some cases) were not introducted into evidence. The testimony impliedly resulted in hearsay testimony about the contents of the contract but the error was not prejudicial. The claim forms, appellant's admissions to Dash, the letters to the participants, and the testimony of the other witnesses were sufficient. (See discussion of assignment of error No. I for analysis.) The elements of the offense were proven beyond a reasonable doubt and the verdict will not be reversed in light of the overwhelming evidence of appellant's guilt. Assignment of error No. II is overruled. III THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S REPEATED OBJECTIONS TO THE INTRODUCTION AND ADMISSION OF INCOMPLETE INSURANCE COMPANY MANUALS AND BOOKLETS THAT WERE NEITHER IDENTIFIED NOR PROVIDED TO THE DEFENSE PRIOR TO TRIAL PURSUANT TO TIMELY AND PROPER DISCOVERY REQUESTS. - 8 - Despite requests during discovery the state failed to provide appellant with State exhibits I, J, K, L and P. These documents were finally provided at trial but in incomplete form. Failure to provide discovery in compliance with Crim. R. 16(E)(3) is not reversible error when it can be shown that the failure was not willful, foreknowledge of the statement would not have benefited the defendant in the preparation of the defense, and the defendant was not prejudiced by the admission of the evidence. State v. Heinish (1990), 50 Ohio St. 3d 231, 236. There was no evidence that the failure was willful. An opportunity for review was provided and no continuance was requested. Effective cross-examination was conducted. We find no prejudice. Assignment of error No. III is overruled. IV THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S REQUEST FOR A JURY INSTRUCTION ON THE GOOD FAITH RELIANCE UPON ADVISE OF COUNSEL DEFENSE. Appellant asked that the jury be instructed that appellant must be found not guilty if he had, in good faith, relied upon the advice of counsel with respect to the legality of the billing practice. The trial judge properly denied the instruction when the evidence did not show that appellant had divulged all the pertinent facts or that counsel had rendered an opinion on the specific conduct in question. Appellant's former counsel testified (after appellant's waiver of the privilege) that he was asked about appellant's - 9 - practice of referring walk-ins to a doctor that was not that person's own physician and he told appellant to discontinue the practice. With regard to the Health-O-Rama procedure and billing he told appellant to be truthful but did not determine whether or not the tests were covered. He did not testify that he told appellant that listing as the "referring doctor" the doctor who would review the tests results was legal. The instruction was properly denied. Assignment of error No. IV is overruled. V THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR A BILL OF PARTICULARS BECAUSE THE STATE'S RESPONSE TO APPELLANT'S INITIAL REQUEST FOR A BILL OF PAPRTICULARS FAILED TO SET UP SPECIFICALLY THE NATURE OF THE OFFENSE CHARGED AND THE CONDUCT OF THE APPELLANT ALLEGED TO CONSTITUTE THE OFFENSE. Crim. R. 7(E) states that upon written request the state "shall furnish a bill of particulars setting up specifically the nature of the offense charged and of the conduct of defendant alleged to constitute the offense." The purpose of a bill of particulars is "to elucidate or particularize the conduct of the accused" but not "to provide the accused with specifications of evidence or to serve as a substitute for discovery." State v. Lawrinson (1990), 49 Ohio St. 3d 238 citing State v. Sellards (1985), 17 Ohio St. 3d 169. Each count of the indictment charged that appellant "knowingly and by deception obtained or exerted control over money with the purpose to deprive the owner, [various insurance companies], of said property or services." - 10 - Appellant reqested a bill of particulars but the bill merely restated the indictment. Appellant filed a motion asking for a bill of particulars and argued that the bill filed did not apprise him of the nature of the offense charged or the conduct appellant committed and never identified the conduct it claimed was deceptive. A review of the record reveals that on May 30, 1990 (over a month before trial) appellant filed a discovery response and a second demand for discovery. In the former appellant listed Jagannadram Kottha and Fred Ramos as potential witnesses and noted that he might use two volumes concerning the diagnostic codes. In the latter appellant asked for statements or information concerning communications to Inspector Robert Dash who had investigated the fraud and spoken to appellant about the billing procedure, include the difference (or lack of difference) between billing for lab work ordered by a physician and that done solely at a person's own request. Clearly, appellant knew that he was being accused of improperly being paid after submitting claims from the Health-O- Ramas organized by Kottha (and about which he had consulted Ramos) and that the deception involved the use of diagnostic codes and the use or lack of a physician that ordered the test. The motion for a bill of particulars was properly overruled. Assignment of error No. V is overruled. VI - 11 - THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S PRETRIAL MOTION TO DISMISS BECAUSE THE INDICTMENT FAILED TO INFORM THE APPELLANT OF THE ESSENTIAL FACTS CONSTITUTING THE OFFENSES WITH WHICH HE WAS CHARGED. Section 10 of Article I of the Constitution provides that "no person shall be held to answer for a ... crime, unless on ... indictment of a grand jury ...." This provision guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury. State v. Headley (1983), 6 Ohio St. 3d 475, 478. The indictment is defective "[w[hen one of the vital elements identifying the crime is omitted." Id. at 478-479. The indictment consisted of seven counts, each of which, but for the name of a different insurance company, stated, "knowingly and by deception obtained or exerted control over money with the purpose to deprive the owner, ______, of said property or services." The indictments alleged a violation of R.C. 2913.02, which states as follows: (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent; (2) Beyond the scope of the express or implied consent of the - 12 - owner or person authorized to give consent; (3) By deception; (4) By threat. (Emphasis added.) Appellant argues that because deceptive is defined alternatively appellant did not receive adequate notice of the charge. However, appellant cites nothing that requires the state to not only specify the mananer in which the money was obtained but the form of the deception. The state is under no obligation to provide the evidence (e.g. by revealing the deficiency in the claim form) so long as appellant knew that he was accused of creating a false impression of a subjective fact: that he was entitled to payment of the claim. Appellant knew that presentation of the claim forms was the conduct in question. (See discussion of assignment of error No. V.) The indictment did not omit an element of the offense, as in Headley, and the motion to dismiss was properly denied. Assignment of error No. VI is overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, J., AND J.D SWEENEY, J., CONCUR. PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .