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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v PLYMOUTH ROAD DENTAL, P.C., Defendant-Appellee.

UNPUBLISHED November 13, 2007

No. 270039 Ingham Circuit Court LC No. 05-000381-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v ANITA N. SYKES, D.D.S., Defendant-Appellee. No. 270040 Ingham Circuit Court LC No. 05-000382-FH

Before: Talbot, P.J., and Fitzgerald and Kelly, JJ. PER CURIAM. In these consolidated cases, plaintiff appeals as of right the circuit court's order granting defendants' motion to quash the information resulting in the dismissal of 16 charges of Medicaid fraud, MCL 400.607(1). We affirm the dismissal of the one count that plaintiff does not challenge and reverse and remand this case for trial on the remaining charges. Defendants, Plymouth Road Dental, P.C. and Anita N. Sykes, D.D.S., were initially accused in separate complaints of 22 counts of Medicaid fraud, MCL 400.607(1). The counts in each complaint were identical for each defendant. Defendants were bound over for trial on 16 counts of Medicaid fraud by the district court following the conclusion of the preliminary examination.1 At the preliminary examination, the office manager of Plymouth Road Dental,

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Of the initial 22 counts of fraud, plaintiff dismissed six counts and did not seek a bind over on one count. On appeal, plaintiff concurs that count 10 should not have been bound over to the
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Lisa Chiselom, testified regarding the billing process and the manner for recording services by Sykes and other dentists in the practice, which entailed the dentist writing on a form the services rendered and initialing the entry. Also testifying at the preliminary examination was Dr. Thomas Haupt, a dentist under contract with the Attorney General to examine Medicaid patients. The evidence of fraud submitted by plaintiff was based on Haupt's examination and testimony regarding discrepancies between invoices submitted by defendants for five patients and the actual dental work or services that had been performed. Haupt detailed several instances where restoration work that was billed had not been done or where restorative work completed was less extensive than the records indicated. Defendants moved to quash the information in the circuit court following the district court's bind over. The circuit court quashed the information and dismissed all charges based on a failure to meet the probable cause standard. The trial court ruled, in relevant part: There is no direct evidence of any specific wrongful intent on the part of the doctor, and none is claimed. I mean, simply, these billings came in; they violate the act. But given what the statute clearly requires, and it seems to me that there has to be some modicum of showing that this is something beyond an error, mistake, and the language given to us by the Legislature is systematic or persistent tendency to cause inaccuracies. We don't have a whole lot. I think I will assume, however, for the purposes of this motion that Dr. Sykes has more than four or five patients. I mean, one presumes that the doctor probably sees, you know, 15, 20, 25 patients a day, if they're like most of the dentists that I know, which means that over the period of a year, they probably see four or five thousand patients. Four or five thousand billings over the period of a year. We have nine here, nine wrongful billings, if you want to put it in that context. Emphasizing the limited number of claims involved the trial court implied that it could more reasonably be inferred that defendants had inadvertently submitted erroneous billings rather than demonstrating a pattern of error sufficient to establish the knowledge element necessary for prosecution under the Act. In addition, the trial court found as persuasive, regarding the absence of wrongful intent, that some of the billings submitted were for lesser amounts than was due for the services actually rendered. On appeal, plaintiff contends the trial court erred in quashing the bind over and dismissal of all the charges. "This Court reviews for an abuse of discretion both a district court's decision to bind a defendant over for trial and a trial court's decision on a motion to quash an information." People v Fletcher, 260 Mich App 531, 551-552; 679 NW2d 127 (2004). Following the conclusion of a preliminary examination, a defendant must be bound over for trial if probable cause exists that the defendant committed the charged offense. People v Orzame,
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circuit court.

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224 Mich App 551, 558; 570 NW2d 118 (1997). Probable cause is determined to exist "where the court finds a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that the accused is guilty of the offense charged." Id. (citations omitted). The prosecutor is not required to establish guilt beyond a reasonable doubt at the preliminary examination. Rather, "there must exist evidence of each element of the crime charged or evidence from which the elements may be inferred. It is not the function of the magistrate to discharge the accused when the evidence is conflicting or raises a reasonable doubt with regard to guilt. Such questions are for the trier of fact." People v Flowers, 191 Mich App 169, 179; 477 NW2d 473 (1991) (citations omitted). To establish a claim under the Medicaid False Claim Act, MCL 400.607, a prosecutor must demonstrate: (1) the existence of a claim, (2) that the accused makes, presents, or causes to be made or presented to the state or its agent, (3) the claim is made under the Social Welfare Act, 1939 PA 280, M.C.L.

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