Eighth Circuit affirms dismissal for lack of particularity

by Ben Vernia | January 15th, 2014

On January 9, the Court of Appeals for the Eighth Circuit affirmed a Minnesota District Court’s dismissal of a whistleblower’s case against a hospital, U.S. ex rel. Dunn v. North Memorial Health Care, but for lack of particularity and not for otherwise failing to state a claim on which relief could be granted. The relator was the administrator of a group of cardiologists providing services at the hospital. He alleged that the the hospital failed to provide physician supervision, and instead staffed its programs with non-physicians. He alleged that as a result, the hospital submitted thousands of false claims for reimbursement to Medicare.

Noting that the Court could, on appeal, affirm the judgment on any basis supported in the record, the Court concluded that the complaint was insufficiently particular under Fed. R. Civ. P. 9(b). The Court wrote that although the relator was not required to allege specific details of every alleged false claim, he could not, in satisfying the particularity requirement, rely on the generalized conclusion that the hospital engaged in noncompliant conduct and thereby caused thousands of false claims, nor on the “broad allegation” that every claim submitted during the time period was false. Instead, the court required him to provide some representative examples with specificity. Even though he identified the hospital officials and doctors involved in the conduct, he failed to identify even one example of an actual false claim submitted, and so it was insufficient to state a claim for relief under the FCA.

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