Whistleblower's complaint against dentist, billing company for anesthesia claims dismissed in Texas

by Ben Vernia | July 11th, 2014

On July 9, Judge Jane J. Boyle of the Northern District of Texas dismissed a whistleblower’s qui tam case without prejudice, finding that it fell short of both Fed. R. Civ. P. 12(b)(6) and 9(b). In the case (in which both the U.S. and the state of Texas declined to intervene), the whistleblower alleged that the dentist (who possessed a Doctor of Medical Dentistry degree) provided and billed for anesthesia services at a hospital, outside the scope of his practice.

Reviewing the complaint, Judge Boyle found that the relator’s allegations were insufficient under 12(b)(6) to state factually or legally false claims. Factually, the complaint alleged that the dentist actually provided the services for which he and the billing company submitted claims; legally, the relator alleged that the defendants certified the dentist’s qualifications for the services provided in a conclusory fashion.

Likewise, Judge Boyle found the complaint inadequate under 9(b), failing to state how the claims were false, what false or fraudulent claims the defendants submitted, when they were submitted, or how they were falsely prepared. Although the relator described documents and processes for submitting claims, she did not describe the content of the claims themselves, or the dates of their submission (apart from generally alleging their submission from 1977 to 2010, and beyond). Although the relator attached a spreadsheet to her complaint, and claimed that it represented a sample of the claims, she did not explain the spreadsheet’s content and failed to identify a single falsity in its pages. Finally, her allegations lacked details, failing to identify when certain allegedly false statements were made, or how they were connected to the decision to reimburse for the charges.

Because of the failure to adequately allege federal violations, the court declined to exercise supplementary jurisdiction over the relator’s state-law retaliation claim.

Judge Boyle dismissed the relator’s complaint without prejudice, and granted her 30 days to file an amended complaint.

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