At a time when doctors face increased pressure from competition, reduced fee schedules, and greater scrutiny from insurance company Special Investigative Units (“SIUs”) and State Office of Insurance Fraud Prosecutors (“OIFPs”), a recent holding from the United States Supreme Court may provide creative arguments to stop, or at least slow, the continued trampling of physicians’ rights in tandem civil-criminal fraud investigations. The prevalence of these dual investigations is significantly increasing, so it is critical for physicians to utilize all potential tools in their arsenals, including constitutional challenges to statements made in civil proceedings that are later used in a criminal proceeding.

In late June 2015, the United States Supreme Court rendered a decision touching upon the Constitution’s Sixth Amendment Confrontation Clause.1 Specifically, in Ohio v. Clark,2 the Supreme Court refined the “primary purpose” test and concluded that certain statements made by a child to his teachers about an adult’s abusive conduct were “non-testimonial,” and therefore such statements were admissible at trial against the adult abuser. While those statements were deemed admissible under the particular facts and circumstances of that case, the rationale underlying the Clark decision may arm physicians being subjected to civil investigations by insurance company SIUs with compelling arguments to preclude the subsequent use of such evidence against them in a criminal investigation.