by Nolan and Auerbach on February 19, 2013
A federal court in a Florida qui tam lawsuit recently ruled that a plaintiff may bring a False Claims Act anti-retaliation lawsuit against defendants other than his employer. (United States ex rel. Koch v. Gulf Region Radiation Oncology, 3:12cv504/RV-CJK (N.D. Fla. Jan. 30, 2013)).
In 2008, West Florida Medical Center Clinic hired Richard Koch as an administrator/manager. After a series of mergers involving West Florida Medical Center Clinic and Sacred Heart Health System, Mr. Koch eventually became an employee of Gulf Region Radiation Oncology. A couple of years later, in January 2010, Gulf Region fired Mr. Koch, allegedly after he raised concerns that they were defrauding government health care programs.
Mr. Koch subsequently filed a False Claims Act anti-retaliation lawsuit against his employer Gulf Region Radiation Oncology and the two predecessor companies, West Florida Medical Center Clinic and Sacred Heart Health System, which both maintained separate legal entity status.
Sacred Heart and West Florida Medical Center Clinic responded by seeking dismissal, arguing Koch was not their employee so they could not be held liable under the False Claims Act for his firing.
The court determined that the defendants’ defense may have had merit before May 2009. However, at that time, the Fraud Enforcement & Recovery Act of 2009 amended and expanded the False Claims Act’s anti-retaliation provision to reach non-employers. Thus, the court found that because the alleged retaliatory discharge happened after May 2009, Mr. Koch could sue West Florida Medical Center Clinic and Sacred Heart Health System, even though they may not have technically been his employers.
More information for whistleblowers is located at the Nolan Auerbach website.
by Nolan and Auerbach on February 12, 2013
Vanessa Absher and Lynda Mitchell are nurses that worked for years at the Momence Meadows Nursing Center, a 140-bed skilled nursing facility in Illinois that houses disabled and elderly patients, the majority of which are Medicare and Medicaid beneficiaries.
According to Ms. Absher and Ms. Mitchell’s qui tam lawsuit, a number of residents at the facility received grossly substandard care for which Medicare and Medicaid were billed. They also allege that they were directed to falsify patient and medication records to reflect that care and medication were given; and staffing records, to show minimum staffing levels were reached. They were also told to “rechart” patient records, in order to conceal events that led to the injury, illness, or death of some residents.
The nurses allegedly complained to management about the inadequate care being provided to residents, the failure to provide medications and meals to patients, the appalling condition in which residents were found, and other incidents involving the facility’s employees. They also supposedly complained to their supervisors that the facility failed to comply with federal and state laws governing quality of care.
In response, the facility allegedly subjected Ms. Mitchell to continuous verbal abuse and hostility, and she was told to “shut her mouth” and told she could be terminated if she continued to complain. Ms. Mitchell was terminated three days after one of facility’s residents died. When Ms. Absher learned that Ms. Mitchell was terminated, she felt she had no other reasonable choice but to resign. In response, the facility allegedly tried to prevent other employers from hiring them. In fact, according to the nurses, the facility even fabricated charges against both women with the Illinois Department of Professional Regulation.
Ms. Absher and Mitchell’s exceptional qui tam attorneys tried the case before a jury, and late Friday, the jury returned a verdict in favor of the nurses and the federal government, finding defendants knowingly provided worthless services to the nursing home residents. The total verdict was over $28 million, and their share in this healthcare fraud skilled nursing facility case will be over $7 million.
More information for whistleblowers is located at the Nolan Auerbach website.
by Nolan and Auerbach on February 5, 2013
After closing out a record year for False Claims Act recoveries, the government announced today that New Jersey based Cooper Health System and Cooper University Hospital has agreed to pay $12.6 million to resolve allegations that it paid illegal kickbacks to health care providers. This settlement is one of the largest recoveries for New Jersey under its state False Claims Act. It is also one of the largest settlements against a hospital for its involvement in an illegal kickback scheme.
The case was originally filed in 2008 by Dr. Nicholas L. DePace who was a prominent Delaware Valley cardiologist. According to the whistleblower, millions of dollars were being paid to physicians in order that they would refer patients to the Cooper Health System and Cooper University Hospital for expensive in-patient and cardiac services. It is Dr. DePace’s allegations that started the investigation by the United States Department of Justice and the New Jersey Attorney General’s Office that led to this recovery.
Nolan Auerbach believes that violations of the Anti-kickback Statute by illegally paying healthcare providers continues to date and remains a basis for False Claims Act liability as this case illustrates. Taxpayers depend on courageous whistleblowers such as Dr. DePace who have the constitutional fortitude to step up to stop these illegal practices.
More information for whistleblowers is located at the Nolan Auerbach website.
