Stevenson v. Com.

                                               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




                               - 2 -
                                               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




                                   - 3 -
                     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




                               - 5 -
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.



                               - 6 -
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



                                 - 7 -
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").



                               - 8 -
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).



                                   - 9 -
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




                                - 10 -
. . . 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




                                - 11 -
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.



                              - 12 -
         Affirmed.




- 13 -
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.




                              - 14 -
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



                                - 15 -
           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



                              - 16 -
             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.



                                 - 17 -
     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




                                - 18 -
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.




                             - 19 -