Anesthesiologist, nurse whistleblowers fail to plead False Claims Act case with sufficient particularity, WDNY rules

by Ben Vernia | March 1st, 2010

District Judge David Larimer in Rochester, NY, ruled on February 18 that the qui tam complaint of an anesthesiology resident and nurse failed to meet the heightened particularity requirement under Fed. R. Civ. P. 9(b). The relators alleged that the defendant, the University of Rochester Medical Center, provided inadequate teaching physician oversight for federally reimbursed anesthesiology procedures in the OB/GYN department and operating rooms, and that when they complained, they were subject to retaliation and terminated (constructively or explicitly).

The Court observed that the whistleblower’s voluminous complaint alleged a lengthy period of inadequate teaching physician oversight of residents, and specific instances, including one case in which a hospital doctor asked the nurse relator to alter medical records to false reflect teaching physician oversight, because “we won’t be able to bill for the case if there was no attending.”

Nevertheless, Judge Larimer described the complaint as failing to see “the proverbial forest for the trees.” Because the complaint did not allege “how, or even if, any bills for procedures involving falsified records were ever presented to Medicare or Medicaid for payment,” and instead offered only “conclusory allegations and assumptions that the pattern of incidents the plaintiffs describe ever actually resulted in a fraudulent bill being submitted” to the federal government, the Court concluded that it fell short of the Second Circuit’s requirement under Rule 9(b) and dismissed the complaint. (Judge Larimer’s opinion does not make clear whether he was granting the relators leave to amend.)

The Court likewise found the relators’ retaliation allegations insufficient. After describing their claims of adverse action following complaints about the hospital’s inadequate teaching physician oversight, Judge Larimer concluded that their conduct appeared to have been motivated by their frustrations with and moral objections to the hospital’s practices, rather than a desire to see federal healthcare fraud investigated.

Finally, Judge Larimer rejected the physician relator’s effort to add common-law tort claims to the case, finding that his clear misstatement of fact concerning the allegation, and the existence of a release, precluded him from bringing the claims into the suit.

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