by bvernia | September 1st, 2009
In an unpublished opinion, the Ninth Circuit on August 27 affirmed the dismissal of a physician’s claims that an outpatient clinic’s chemotherapy services were billed with inadequate physician oversight, and that the clinic retaliated against him in violation of the FCA.
In the brief opinion, the Court acknowledged that the relator had raised a genuine issue of material fact whether the chemotherapy services had been provided “incident to” the service of a physician (under 42 CFR § 410.269b)), but it concluded that he had not established a genuine issue concerning the defendants’ scienter. Viewed in the light most favorable to him, the Court wrote, the evidence suggested that any noncompliance resulted from a good faith interpretation of the regulations, or at worst negligence in the clinic’s compliance.
The Court likewise rejected the doctor’s whistleblower retaliation claim, stating that even if he engaged in conduct protected by the FCA, there was no evidence that the defendants were aware of his protected conduct. In fact, the Court noted, he and his attorneys had told the defendants that a records request which they alleged triggered his dismissal was related to his compensation, and they never gave any indication that he was investigating the defendants for defrauding the US.
The case affirmed United States ex rel. Lockyer v. Hawaii Pacific Health, 490 F.Supp.2d 1062 (D. Haw. 2007).
Rafael Del Castillo and Arleen Jouxson of Jouxson-Meyers & Del Castillo represented the relator; AUSA Harry Yee represented the US. Harry Silver and Larry Freedman of DC’s Patton Boggs represented the defendants.
