The Missing Victims of Health Care Fraud

Over the past few decades, combating criminal health care fraud has  become one of the highest priorities of federal law enforcement, which  views and treats it as a financial crime that causes vast economic losses  to the government and private insurers. But the crime also causes, or  threatens, physical harms to individual health care patients, a class of  victims that the criminal justice system often fails to recognize. This Article  is the first to explore how structures and hidden levers of power within the  criminal justice bureaucracy lead agents and prosecutors to select—and  ignore—particular harms and victims and, more importantly, what drives  their selections. The implications extend beyond health care fraud. Questions about this form of prosecutorial discretion are surprisingly  absent in the scholarly literature. Through the lens of health care fraud, I  show that features of statutory frameworks and sentencing guidelines can  have an outsized influence on the selection of harms and victims in  complex cases, often in unintended ways that merit greater scrutiny.  Internal dynamics within the criminal justice bureaucracy, including those  driven by governmental interests as well as the interests of agents and  prosecutors themselves, also play a significant role. These factors  combine to spur our criminal justice system to treat health care fraud as  just another flavor of fraud, devaluing victims and skewing punishments  of offenders who exploit patients as a means to enrich themselves.