Federal Judge Denies Florida Cardiovascular Center's Motion to Dismiss Whistleblower Suit: Judge Rules that U.S. and Florida A.G. Did Not File "Shotgun Pleadings"
Wednesday, November 11, 2015
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health LawU.S. District Judge for the Middle District of Florida, Roy B. Dalton, Jr., denied a motion to dismiss filed by a cardiovascular center based in Ocala, Florida, and its top physician. The case the defendants sought to dismiss is a False Claims Act (FCA) qui tam suit brought by two whistleblowers in which the United States and Florida have intervened. Defendants, Institute of Cardiovascular Excellence PLLC (ICE) and Dr. Asad Ullah Qamar, argued that the intervening governments filed impermissible "shotgun pleadings," failed to state a claim and didn't allege specific facts about the allegations. However, Judge Dalton disagreed with their arguments finding that the governments' complaints decidedly contained specificity as to the alleged facts, including time, place and substance of the alleged fraud as well as the process by which it was carried out. To read the first complaint filed in this case, click here. To read the full consolidated complaint filed in this case, click here.
Defendants Rely on Magluta v. Samples.A 2001 decision by the Eleventh Circuit found a complaint to be a "shotgun pleading" where it contained 58 pages, named 14 defendants and charged all of them in every count (despite plain geographical and temporal realities that would make improbable every defendant's involvement in each allegation), including several counts that incorporated general allegations. The defendants in the instant case relied on this prior decision in moving to dismiss the governments' complaint against them. To read the full decision of the Eleventh Circuit in Magluta v. Samples, click here. Judge Dalton disagreed with the defendants' correlation noting that although the governments' complaint was lengthy, they only name two defendants and include just a few counts that don't incorporate the allegations of any other counts preceding them.
The Court Found the Governments Asserted Specific Allegations.The defendants further contended that the governments fall short in showing that the procedures for which federal reimbursements were received were medically unnecessary. The defendants argued the governments also failed to show that the defendants knowingly committed FCA violations and finally, the allegations raised in the complaints lacked any sufficient facts in support of such claims. Judge Dalton again disagreed pinpointing specific examples of allegations in the complaint supported by the facts, including Dr. Qamar's alleged:
(a) "fishing expeditions" to find cardiac/arterial patients;Furthermore, it was alleged that Dr. Qamar paid kickbacks to patients in violation of the Anti-Kickback Statute (AKS), waiving the 20 percent Medicare co-payments as a means to induce patients to undergo the reported excessive and medically unnecessary procedures. The fee-waiving incentive was utilized without assessment or consideration of the patients' actual financial needs. Judge Dalton noted that Dr. Qamar is the "highest paid Medicare cardiologist in the country," receiving more than $35 million in Medicare reimbursements in just one years' time between 2012 and 2013. To read the full press release of the Department of Justice (DOJ), click here.
(b) performance of unplanned diagnostic imaging without verification as to its necessity;
(c) overestimation of the severity of arterial blockage (reportedly to justify expensive procedures); and
(d) performance of invasive procedures on patients without first exhausting all non-invasive treatment options.
Whistleblowers Reap Hefty Rewards.Robert A. Green was the first relator to file a qui tam suit against ICE and Dr. Qamar in July of 2011, alleging violations of the FCA. Holly Taylor "followed suit" so-to-speak in June of 2014, filing a similar qui tam suit against the defendants. The governments intervened later that same year in both cases which were subsequently consolidated in April of 2015. Section 3730, 31 United States Code, provides for private parties, known as qui tam relators, to bring an action under the FCA on behalf of the United States when they discover evidence of false claims submitted to improperly obtain government funds. Qui tam relators are offered incentive to report these incidences of health care fraud with the promise of a quite significant percentage share of the proceeds obtained in an FCA action or settlement. This share is between no less than 15 percent and no more than 25 percent of the proceeds recovered by the government. This often results in millions for a qui tam relator (a.k.a. whistleblower). To read more about FCA actions brought by private parties, click here. To learn more about whistleblower/qui tam cases brought under the FCA, read our two-part blog. Click here for part one and click here for part two.
Contact Health Law Attorneys Experienced with Qui Tam or Whistleblower Cases.Attorneys with The Health Law Firm also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Sources:Department of Justice, Office of Public Affairs. "Government Intervenes in Lawsuit Against Florida Cardiologist Alleging Unnecessary Peripheral Artery Interventions and Payment of Kickbacks." Press Release. Justice News: 5 Jan. 2015. Web. 10 Nov. 2015.Kennedy, John. “Fla. Cardiovascular Center Can’t Dodge FCA Suit.” Law360. Portfolio Media, Inc.: 5 Nov. 2015. Web. 8 Nov. 2015.Magluta v. Samples, No. 00-12540 (11th Cir. Decided: July 13, 2001).Section 3730(b), 31 United States Code.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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