Tuesday 8th
December, 1998.
William Cage Stevenson, Appellant,
against Record No. 0920-97-2
Circuit Court No. 11,534
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton, Bumgardner and Lemons
Thomas C. Hill (Max Reynolds; Kimberly A.
Jackson; Shaw, Pittman, Potts & Trowbridge,
on briefs), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
A divided panel of this Court affirmed the judgment of the
trial court. See Stevenson v. Commonwealth, 27 Va. App. 453, 499
S.E.2d 580 (1998). We stayed the mandate of that decision and granted
a rehearing en banc.
Upon rehearing en banc, the judgment of the trial court is
affirmed without opinion by an equally divided Court. Chief Judge
Fitzpatrick, Judges Benton, Elder, Bray and Annunziata voted to
reverse the judgment of the trial court. Judges Coleman, Willis,
Overton, Bumgardner and Lemons voted to affirm said judgment.
This order shall be published and certified to the trial
court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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Tuesday 21st
July, 1998.
William Cage Stevenson, Appellant,
against Record No. 0920-97-2
Circuit Court No. 11,534
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On June 19, 1998 came the appellant, by counsel, and filed a
petition praying that the Court set aside the judgment rendered herein
on June 2, 1998, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on June 2, 1998 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellant shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
WILLIAM CAGE STEVENSON
OPINION BY
v. Record No. 0920-97-2 JUDGE SAM W. COLEMAN III
JUNE 2, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Thomas C. Hill (Max M. Reynolds; Shaw,
Pittman, Potts & Trowbridge, on briefs), for
appellant.
Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Dr. William Cage Stevenson was convicted by a jury for
"forg[ing] a cardiac stress test writing, to the prejudice of
Trigon Blue Cross/Blue Shield" (Trigon), in violation of Code
§ 18.2-172. Conceding he altered the date the stress test was
given, Stevenson contends the evidence is insufficient to prove
that his conduct operated "to the prejudice" of Trigon. We hold
that the evidence is sufficient to prove that Stevenson's
alteration of the date of the stress test was prejudicial to
Trigon. Accordingly, we affirm the conviction.
BACKGROUND
Viewed in the light most favorable to the Commonwealth, see
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975), the evidence proved that in December 1995, Stevenson,
a physician at the University of Virginia Medical Center, was
treating Leonard Kraditor, a patient in need of a liver
transplant. As a prerequisite to Kraditor being placed on the
hospital's waiting list for a donated liver, hospital
administrators required "pre-authorization" from Kraditor's
medical insurance carrier, Trigon Blue Cross/Blue Shield.
Dr. Richardson Grinnan, Senior Vice President and Chief
Medical Officer of Trigon, testified that "[p]re-authorization is
a service which [Trigon makes] available to [health care]
providers to ensure benefit coverage and to avoid adverse medical
necessity determinations after the fact." To obtain
pre-authorization for transplant surgery, Trigon requires
providers to submit a letter of medical necessity that addresses
the severity of a patient's medical condition and the patient's
ability to survive the stress of surgery. Generally, before
placing a patient's name on the transplant list, the hospital's
transplant financial coordinator submits to the patient's insurer
a pre-authorization request, together with a letter of medical
necessity, and awaits its approval.
After Dr. Stevenson discussed Kraditor's condition with the
hospital's financial coordinator and conveyed his belief that
liver donations would increase during the holiday season, Dr.
Stevenson convinced the financial coordinator to place Kraditor
on the transplant list before receiving Trigon's
pre-authorization pursuant to the hospital's emergency protocol.
The financial coordinator did so contingent upon Stevenson
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providing a letter of medical necessity to Trigon as soon as
possible after the new year. On January 18, 1996, Stevenson sent
a letter to Trigon stating:
We have evaluated [Kraditor's] cardiac, renal
and pulmonary function and repeated tests to
rule out other causes. We have reviewed his
case in our candidate selection meeting and
feel he is a good candidate for
re-transplantation. We are now seeking
financial approval from you to proceed with
. . . Kraditor's treatment.
Without knowing whether Trigon had pre-authorized the
transplant, Dr. Stevenson implanted a donated liver in Kraditor
on January 21, 1996. Kraditor suffered no cardiovascular
complications from the surgery.
Three days after the transplant, Trigon tentatively denied
"pre-authorization" for the surgery and requested additional
information from the hospital, including the results of
Kraditor's cardiac evaluation mentioned in Stevenson's letter.
The financial coordinator was unable to find the cardiac stress
test results in Kraditor's file and asked Stevenson to address
Trigon's query. By this time, Kraditor was experiencing
significant health deterioration, the liver was failing and he
would require another liver transplant. The hospital informed
Stevenson that Kraditor could not undergo a second liver
transplant until it received Trigon's pre-authorization for the
first transplant.
Stevenson obtained a copy of a stress test performed two
years earlier, in April 1994, on Kraditor at another hospital.
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Using a computer scanner, Stevenson altered the date on the
stress test to make it appear that the test had been given just a
few months before he performed Kraditor's transplant surgery.
Stevenson delivered the altered stress test to the financial
coordinator, who forwarded it to Trigon on February 6, 1996.
Relying in part on the date-altered stress test, Trigon
authorized the transplant surgery on February 12, 1996, three
weeks after Kraditor's surgery. Marietta Boyce, Trigon's Manager
of Medical Policy, testified that the pre-authorization would not
have been given had the hospital failed to provide the stress
test or similar data. The hospital later discovered that
Stevenson had altered the date on the stress test and elected not
to submit a claim for reimbursement to Trigon.
Stevenson was indicted on charges of forging the test to the
prejudice of Trigon and uttering the test, knowing it was forged.
A jury convicted him of forgery under Code § 18.2-172 and
acquitted him of the uttering charge. 1
ANALYSIS
Code § 18.2-172 provides that "[i]f any person forge any
writing . . . to the prejudice of another's right . . . , [that
person] shall be guilty of a Class 5 felony." 2 The General
1
The jury recommended a minimum penalty of a one dollar fine
against Dr. Stevenson. As a result of the conviction, Dr.
Stevenson's license to practice medicine was automatically
suspended. See Code § 54.1-2917. After an evidentiary hearing,
the Virginia Board of Medicine reinstated his license.
2
Code § 18.2-172 criminalizes the forgery and uttering of all
writings not covered by the statutory provisions proscribing
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Assembly intended to codify the English common law of forgery by
enacting Code § 18.2-172. See Campbell v. Commonwealth, 246 Va.
174, 182-83, 431 S.E.2d 648, 653 (1993). At common law, the
crime of forgery "is defined as 'the false making or materially
altering with intent to defraud, of any writing which, if
genuine, might apparently be of legal efficacy, or the foundation
of legal liability.'" Fitzgerald v. Commonwealth, 227 Va. 171,
173, 313 S.E.2d 394, 395 (1984) (citation omitted); see Gordon v.
Commonwealth, 100 Va. 825, 829, 41 S.E. 746, 748 (1902). A
document or instrument is one of legal efficacy "where by any
possibility it may operate to the injury of another." Gordon,
100 Va. at 829, 41 S.E. at 748 (emphasis added). Thus, to
support a conviction under the modern forgery statute, the
Commonwealth must prove that the forged or altered document
operated to the actual or potential prejudice of another. See
Muhammad v. Commonwealth, 13 Va. App. 194, 199, 409 S.E.2d 818,
821 (1991) ("bare possibility" of prejudice is sufficient under
Code § 18.2-172).
In addition, Code § 18.2-172 does not require that the
forged or altered document operate to the actual prejudice of one
who does or could rely on the genuineness of the document itself.
See, e.g., Hanbury v. Commonwealth, 203 Va. 182, 187, 122 S.E.2d
911, 915 (1961) (counterfeit city tax stamp affixed to cigarette
forgery of public documents, seals, and bank notes. Cf. Code
§ 18.2-168 (forgery of "public records"); Code § 18.2-169 (forgery
of "seal"); Code § 18.2-170 (forgery of "coin or bank notes").
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packages by cigarette vender operated to prejudice of city). To
prove a forgery under the statute, the Commonwealth was required
to prove only that the forged document had the potential to
operate "to the prejudice of another." Code § 18.2-172 (emphasis
added). Here, the Commonwealth elected to charge that
Stevenson's conduct operated "to the prejudice of Trigon."
Stevenson concedes he altered the date of the stress test.
The sole issue on appeal is whether the evidence is sufficient as
a matter of law to prove that the alteration of the date of the
stress test operated to the actual or potential prejudice of
3
Trigon.
When the sufficiency of the evidence is challenged on
appeal, we must determine whether the evidence, viewed in the
light most favorable to the Commonwealth, and the reasonable
inferences fairly deducible from that evidence, prove every
essential element of the offense beyond a reasonable doubt. See
Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740
(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662,
668 (1991). We will not disturb a jury's verdict unless it is
plainly wrong or without evidence to support it. See George v.
Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991). We
3
Stevenson does not address, nor do we consider in this appeal,
whether the stress test was an instrument that may be the subject
of a criminal forgery. See generally 36 Am. Jur. 2d Forgery § 27
(1968) ("crime of forgery . . . covers nearly every class of
instruments known to the law as effecting private or public
rights"); 37 C.J.S. Forgery §§ 19, 31 (1997).
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find the evidence sufficient to prove that Trigon was prejudiced
and could have been further prejudiced by Stevenson's alteration
of the stress test.
The evidence established that pre-authorization is an
integral part of the framework by which Trigon ensures coverage
for medical treatment and approves payment of claims under a
patient's insurance contract. Although claims may be paid
without pre-authorization, the evidence proved that Trigon
routinely pays claims because they have been pre-authorized. At
trial, during her direct examination, Boyce explained the close
nexus between Trigon's pre-authorization and its payment of
insurance benefits:
[BOYCE]: Once the claim was submitted for
solid organ transplants, once you approve
them to list, no one knows if the recipient
is going to receive an organ or how long
they'll have to wait for an organ to become
available. So, what [Trigon's
pre-authorization] shows is that it's been
pre-authorized to do, but claim payment would
not start until the transplant center
submitted the claim for the transplant
itself.
[COMMONWEALTH'S ATTORNEY]: Was there
anything left to be done by Trigon as far as
approval for payment?
[BOYCE]: No.
[COMMONWEALTH'S ATTORNEY]: So, [the
pre-authorization] was the end of it as far
as the approval process for Trigon?
[BOYCE]: For the transplantation itself.
Thus, according to Boyce, "Trigon [may] approve medical services
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. . . before the services are rendered or after the services are
rendered." Although other evidence shows that a final benefits
determination is ultimately made when the claim is submitted for
approval, pre-authorization is a determination that benefits will
be paid for the services for which preliminary approval is
granted. Thus, Dr. Stevenson fraudulently attempted to obtain
pre-authorization for the transplant, albeit after the fact, to
the same end he would have been pursuing had he done so before
the operation -- that is, to obtain Trigon's determination that
it would reimburse the providers for the costs of the transplant.
In this vein, the evidence proved that the alteration of the
stress test prejudiced Trigon.
We disagree with Stevenson's contention that Trigon's
pre-authorization was rendered "moot" by the fact that Kraditor
had the operation and survived without cardiac complications
before Stevenson altered the stress test. Admittedly, Dr. Larry
Colley, a Trigon official, testified that "Trigon would have
approved coverage for [the] transplant operation" notwithstanding
the pre-authorization because Kraditor had survived the operation
without cardiac complication. And, as Dr. Stevenson repeatedly
notes, Dr. Grinnan testified that "the patient underwent
successful surgical intervention without cardiac complication
making the test result a noncontributory factor relative to final
benefits determination." However, the fact remains that Trigon
predicated its approval of the liver transplant on the medical
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necessity letter submitted by Stevenson that eventually included
the altered cardiac stress test. The dispositive factor is that
the pre-authorization procedure prejudiced Trigon because when
Stevenson forged the stress test data it could have prejudiced
Trigon, regardless of whether as the facts developed other
factors may have ultimately controlled payment. Trigon
"pre-approved" the transplant based upon the letter of medical
necessity and the forged stress test. Indeed, Dr. Grinnan
testified that Trigon only "review[s] cases after the fact if
they haven't been pre-approved." (Emphasis added). Therefore,
in making a final benefits determination, Trigon would not have
had to consider whether Kraditor survived without complication
because it had pre-approved the transplant and, as the testimony
from Boyce and Dr. Grinnan confirms, "there [was nothing] left to
be done as far as approval for payment."
CONCLUSION
We find the evidence to be sufficient as a matter of law to
prove that Stevenson altered the cardiac stress test "to the
prejudice of [Trigon's] right," in violation of Code § 18.2-172.
We do not question Dr. Stevenson's motives or that he forged the
stress test in order to provide the medical care that his patient
critically needed while avoiding the procedural requirements of a
managed health care plan. Nevertheless, his forgery of the
cardiac stress test violated Code § 18.2-172. Accordingly, we
affirm the conviction.
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Affirmed.
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Benton, J., dissenting.
Dr. William C. Stevenson concedes he altered the date of the
stress test. The sole issue on appeal is whether the evidence is
sufficient to prove beyond a reasonable doubt that the alteration
of the date of the stress test operated "to the prejudice of
[Trigon Blue Cross/Blue Shield's] right." I believe the evidence
is insufficient because the Commonwealth did not meet its "burden
. . . to prove every essential element of the offense beyond a
reasonable doubt." Moore v. Commonwealth, 254 Va. 184, 186, 491
S.E.2d 739, 740 (1997). Viewed in the light most favorable to
the Commonwealth, the evidence failed to prove that Stevenson's
alteration of the date of the stress test, under the facts of
this case, could have prejudiced Trigon.
The evidence proved that in the mid-1970s Leonard Kraditor
underwent a coronary bypass operation because of coronary artery
disease. Kraditor had his first liver transplant operation in
1989 and survived the surgery without cardiac complications. In
December 1995, Stevenson was treating Kraditor and determined
that Kraditor needed another liver transplant. Stevenson
informed Trigon of the following:
We have evaluated [Kraditor's] cardiac, renal
and pulmonary function and repeated tests to
rule out other causes. We have reviewed his
case in our candidate selection meeting and
feel he is a good candidate for
re-transplantation. We are now seeking
financial approval from you to proceed with
. . . Kraditor's treatment.
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Trigon tentatively denied pre-authorization for Kraditor's
transplant surgery and requested additional information
concerning Kraditor's cardiac condition.
Stevenson altered the date of Kraditor's earlier stress
test. However, when Stevenson altered the date, Kraditor had
already undergone the liver transplant surgery and had survived
the surgery without cardiovascular complications. Although
Trigon relied upon the stress test in granting pre-authorization
for the transplant surgery after the surgery had been performed,
the evidence failed to prove that the pre-authorization could
have affected either Trigon's final benefits determination or
Trigon's obligations under its insurance contract. Trigon's
senior officials testified that Trigon was contractually
obligated to pay for the operation once Kraditor survived the
surgery without cardiac complications, notwithstanding either the
alteration of the date of the stress test or Trigon's
pre-authorization for the treatment already given.
The evidence proved, at most, that pre-authorization is a
"service" that gives health care providers a "preliminary
indication" whether the treatment will be covered by Trigon.
Indeed, Dr. Richardson Grinnan, Trigon's Senior Vice President
and Chief Medical Officer, testified as follows:
We provide the pre-authorization process
as a service to physicians and subscribers to
prevent after-the-fact medical necessity
denials. In this particular incidence, we
didn't receive the information, but given the
fact--and we would have required that he have
that information submitted to us in advance
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to give them some preliminary indication of
whether or not we would have covered the
surgery, but not receiving the information in
advance, but with him surviving the
operation, it would not have had an adverse
determination on whether or not we would have
paid that bill.
Marietta Boyce, a registered nurse employed by Trigon, testified
that Kraditor's insurance policy did not require Kraditor or his
physicians to seek pre-authorization from Trigon as a condition
of coverage.
The Commonwealth failed to prove that, after Kraditor
survived the surgery without cardiac complications, the stress
test itself could have had any bearing on Trigon's final benefits
determination for the transplant surgery. The evidence
undisputedly proved that a final benefits determination had to be
made by Trigon when the claim was submitted and before Trigon
paid for the surgery. Dr. Grinnan testified that because
Kraditor "underwent successful surgical intervention without
cardiac complications . . . [,] the test result [was] a
non-contributory factor relative to final benefits
determination." Consistent with that testimony, Dr. Lawrence
Colley, who supervises Boyce in the department responsible for
Trigon's coverage policy and reimbursement rates, testified as
follows:
Q. . . . You indicated that had you known
that Mr. Kraditor had undergone the liver
transplant operation and that he did not have
any cardiac event either during or after the
operation and that, in fact, he died I think
on February 2nd, I believe, because his body
rejected the transplanted liver, Trigon would
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have approved coverage for that transplant
operation, wouldn't it?
A. I stated that, yes.
Although the majority states that Boyce, the registered
nurse who is supervised by Dr. Colley, explained a nexus between
Trigon's pre-authorization and its payment of benefits, the
excerpt from Boyce's testimony in the majority opinion clearly
proves that her testimony was limited to explaining that she had
pre-authorized only "[f]or the transplant itself" and not the
payment of the claim. Any doubt about the limited nature of her
testimony is dispelled by her response to the following
questions:
Q. All right. And . . . do you know Dr.
Colley?
A. That's my boss.
Q. Okay. And do you know Dr. Grinnan at
Trigon?
A. That's my boss's boss, yes.
Q. Okay. Dr. Grinnan is above Dr. Colley
and Dr. Colley is above you.
A. Correct.
Q. You know now, don't you, that Dr.
Grinnan and Dr. Colley will say that if
Trigon knew that Mr. Kraditor had
successfully undergone the liver transplant
operation on January 29th, I think, without
any incidence of a cardiac arrest or cardiac
event, that it wouldn't have made any
difference to them whether or not Trigon had
a cardiac stress test? Don't you know that
Dr. Colley and Dr. Grinnan have taken that
position?
A. Yes.
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In addition, the majority's assertion that Trigon would not
have made a final benefits determination because it had provided
a pre-authorization service is based upon a misunderstanding of
Dr. Grinnan's testimony. The full context of Dr. Grinnan's
testimony in that regard is as follows:
Q. Does Trigon Blue Cross/Blue Shield have
different procedures with respect to the
pre-approval and post-approval of medical
care coverage?
A. Not everything is pre-approved.
Pre-approval is the process that we make
available as a service to doctors to avoid
problems. We review cases after the fact if
they haven't been pre-approved and we make
determinations based on information that's
available.
That testimony does not imply that pre-authorized procedures are
not reviewed for final benefits determinations when claims are
submitted. Dr. Grinnan merely stated that in those cases where
no request for pre-approval has been made, a benefits
determination will be made when the claim is submitted.
Once the surgery had been performed on Kraditor, the pending
application for pre-authorization was rendered moot. Dr. Grinnan
testified that the stress test, required by Trigon to measure
pre-operative risk, was then a "non-contributory factor relative
to final benefits determination." At that point, the
date-altered stress test had no potential to prejudice Trigon's
rights because "it does not fix, nor could it operate, any
pecuniary liability upon [Trigon]." Terry v. Commonwealth, 87
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Va. 672, 674, 13 S.E. 104, 104 (1891).
Considered in the light most favorable to the Commonwealth,
the evidence proved that Kraditor survived the surgery without
cardiac complications and later died because of liver and renal
failures, causes unrelated to cardiac complications. The
evidence also proved that Stevenson's alteration of the date of
the stress test, the act the Commonwealth sought to prove to be a
forgery, was "a non-contributing factor relative to [Trigon's]
final benefits determination." Thus, the evidence failed to
prove beyond a reasonable doubt that Stevenson forged the stress
test to the potential prejudice of Trigon. Accordingly, I would
reverse the conviction and dismiss the indictment.
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