United States Of America et al v. Meadows Regional Medical Center, Inc. et al

Filing 33

ORDER denying as moot 17 Motion to Dismiss; denying 25 Motion to Strike and 26 Motion to Dismiss. Signed by Chief Judge J. Randal Hall on 5/16/17. (cmr)

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IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION UNITED OF AMERICA * and THE STATES STATE OF GEORGIA * ex rel. PHIL FLEXON, * • Plaintiffs, * * * MEADOWS REGIONAL CENTER, INC. MEDICAL CV 615-045 * and WAYNE WILLIAMS,* * M.D., * Defendants. * * ORDER In this qui tarn action, Relator Phil Flexon alleges that Defendants billed the government for services Defendants did not provide and for services that were not medically necessary and that Defendant Meadows Regional Medical Center fired Relator in retaliation Defendants Relator has for move not his to reporting dismiss Defendants' Relator's claims, sufficiently alleged that false claims to the government and (2) connection his between reporting however, the termination Defendants' of alleged fraudulent arguing Defendants conduct. (1) that submitted that there is no causal Relator's employment misconduct. The and Court, is satisfied that Relator has adequately pleaded that Defendants submitted false claims to the government. And when the complaint is viewed in the light most favorable to Relator, he has plausibly reporting Defendants' employment. dismiss alleged (Doc. 24 arises SI 84.) of his motion to Factual Background out of Relator's Defendant Dr. was Relator's tenure there. an employment operates according to More regularly Wayne Williams, with Meadows on Relator, (Id. 5 4.) patients' Dr. to specialist, sinuses. Williams's specifically, fails an ear-nose-and- also employed by Meadows Regional during ear-nose-and-throat routinely fraud. termination his Relator joined the staff at Meadows Regional in 2011. throat specialist, As the between 26). case Regional. and connection the Court DENIES Defendants' I. This causal actions Accordingly, (doc. a Relator fully (Id. surgeries contends perform Dr. that surgeries SI Williams 52.) But are often Dr. Williams and a performs surgeries that are not medically necessary. Relator alleges, for Williams, example, that J.H., a patient extensive surgery in 2010. (IdL operated on contends, J.H., Relator SI 77.) surgery he claimed to have performed. alleges, procedures as another of example, that on another patient, N.G., Dr. Although Dr. he did not (Id. SI 77.) Dr. needed Williams perform the Relator also Williams performed that were not medically necessary.1 (Id. Defendants the SI 79.) Relator submitted claims government. (Id. SISI alleges, for payment 77, 79, moreover, for these surgeries to 81.) Relator uncovered Williams's fraudulent practices when he operated on two Williams's former patients. Meadows Regional Regional (Id. fired SISI 88, of his him in filed alleging et O.C.G.A. September and he for a sealed Dr. Relator apprised claims that reporting and of the complaint 2016. to and (Docs. the (Doc. 1.) his Meadows findings. ordered 11, 12.) Act, False served it Court in 30 April U.S.C. Claims Act, After investigating, and the Court on Defendants 19.) granted Relator leave to Claims intervene, amend. 17, this Medicaid and in response, (Docs. in False Georgia § 49-4-168 et seq. declined complaint Relator's complaint, the unsealed Defendants moved to in dismiss Relator moved for leave to Defendants consented and file an amended complaint. Defendants now move to dismiss Relator's claims.2 1 of Procedural Background violations seq., government Relator's discovery, 87-88.) Dr. 91-92. ) Relator § 3729 SISI retaliation II. 2015, (Id. that the Court (Doc. 23.) (Doc. 26.) Relator also alleges that Dr. Williams improperly performed surgeries on at least ten other patients. (Doc. 24 1 80.) 2 Defendants also move to strike Relator's amended complaint. (Doc. 25.) As noted, in response to Defendants' first motion to dismiss, Relator moved for leave to amend his complaint. And Relator attached a copy of a proposed amended complaint to his motion. (Doc. 19-1.) The Court granted Relator leave to amend and ordered him to "file his Proposed First Amended III. Legal Standards In considering a motion to dismiss under Rule 12(b)(6), Court tests the legal sufficiency of the complaint. Rhodes, all 416 U.S. facts alleged inferences in Hoffman-Pugh The 232, Court, (1974). the in the v. 236 complaint light most Ramsey, however, 312 need only well-pleaded facts. 79 Scheuer v. The Court must accept as true and favorable F.3d not the construe to 1222, accept 1225 legal Ashcroft v. the all reasonable plaintiff. (11th Cir. conclusions Iqbal, See 2002). as 556 U.S. true, 662, 678- (2009). A complaint also accepted as true, on its face.'" 544, "factual content 570 inference that alleged." Id. "'contain sufficient factual matter, *to state a claim to relief that is plausible Id. 550 U.S. must at 678 (citing Bell Atl. (2007)). that the The plaintiff is allows the defendant "The court is plausibility to liable Corp. Twombly, required to plead draw for standard v. is the the not reasonable misconduct akin to a Complaint on or before December 9, 2016." (Doc. 23.) Relator filed an amended complaint on December 9, but the complaint contained amendments not found in the proposed complaint that he attached to his motion to amend. (See Doc. 24.) Defendants move to strike Relator's amended complaint because Relator failed to follow the Court's instructions about filing the proposed amended complaint. In response, Relator acknowledges that he further amended his complaint before he filed it and requests that the Court, to the extent necessary, treat his December 9 filing as a second motion for leave to amend. Because Defendants have not offered any reason justifying striking the complaint, the Court DENIES Defendants' motion to strike. And to the extent necessary, the Court GRANTS Relator's second motion for leave to amend and considers his December 9 complaint properly filed. ^probability requirement,' but it asks for more than Under Rule 9(b), a plaintiff alleging sheer "must possibility that a defendant has acted unlawfully." a state Id. fraud with particularity the circumstances constituting fraud . Fed. R. Civ. "defendants charged . P. to . . 9(b). the ." 1202 (11th marks the v. Cascade (citation And requires it Fla., a "allegedly Inc., 19 this F.3d rule with Int'l, fraudulent 256 to . ." alert they are F.3d 1194, quotation allege acts, Cooper v. 568 to (internal plaintiff 562, is which Inc., omitted) and who engaged in them." of of misconduct 2001) defendant's occurred, Shield Cir. purpose precise Ziemba omitted). of The . details when they Blue Cross & Blue (11th Cir. 1994) (per curiam). IV. Relator 3730(h).4 billed asserts More the 3 Section Act, for violation of for services 3729 and § 3730(b) claims specifically, government perform and Discussion defines under 31 U.S.C. Relator contends services that Dr. 3729 that and Defendants Williams did not that were not medically necessary in certain actions that violate provides that "a person may bring a section §§ 37293 for the person and for the False Claims civil action for a the United States Government." 4 As noted, Relator also alleges that Defendants violated the Georgia Medicaid False Claims Act. Because Defendants argue only that this claim should be dismissed for the same reasons as Relator's False Claims Act allegations, the Court does not separately address this cause of action. United States ex rel. Barker v. *3 (M.D. Ga. June 3, 2015) Tidwell, No. 4:12-CV-108, 2015 WL 3505554, See at (noting that the False Claims Act and the Georgia Medicaid False Claims Act impose liability for the same type of conduct). violation of violated § 3729. § 3730(h) retaliation And he it because for his argues terminated reporting the that Meadows his employment fraudulent Defendants move to dismiss Relator's claims, Regional in practices. arguing that he has failed to plead sufficient facts to support his claims. A. 31 U.S.C. The on § False behalf presents, of or Claims the Act United allows private against States citizens anyone or causes to be presented, for payment False 3729 or approval." Claims Act fraudulent 31 relator must claim; (2) who file suit "knowingly a false or fraudulent claim U.S.C. prove which to § 3729(a)(1)(A). three was things: presented, Thus, "(1) or a caused a false to be presented, by the defendant to the United States for payment or approval; (3) United States 433 F.3d 1349, with ex the rel. 1355 must Walker v. (11th Cir. False Claims Act 9(b)'s knowledge that R&F "facts complaints, as to Props, claim of moreover, (11th Clausen Cir. omitted). v. 2002) This Lab. time, place, of Am., (citation omitted) because false." Cty., Inc., subject to Rule requirement Corp. is Lake are and defendant's alleged fraud" on the government. rel. was 2005). pleading-with-particularity include the "[t]he Inc., 290 (internal False and therefore substance of the United States ex F.3d 1301, quotation Claims Act 1310 marks does not create liability merely for a health care provider's disregard of Government regulations or improper internal policies unless, as of a result Government to relator thus detail but such pay is amounts not then acts, to the it does permitted to allege provider not knowingly owe." Id. at "describe a private simply and without asks the 1311. A scheme in any stated reason for his belief that claims requesting illegal payments must have been submitted, submitted to Here, were the likely submitted Government." Defendants argue with particularity their or should been Id. that Relator has alleged submission false claims Defendants' The with submission of Court, sufficient the government. however, detail program," August 2010, Dr. sinusotomies Relator J.H." that (Id.) the operation, about is that satisfied that Defendants Relator has submitted false pleaded claims to for instance, Relator alleges that, in Williams purported to perform "bilateral total alleges procedures. allegations false claims. ethmoidectomies on conclusory about With respect to patient J.H., "a participant in the Medicare endoscopic only details to Williams's alleged failure to perform the proper surgeries, provides contains plead Dr. it complaint of to government. contend, the failed the they Although have and (Doc. Dr. Still, 24 bilateral St 77.) Williams endoscopic But did Relator contends, not as frontal noted above, perform these within a month of Defendants "knowingly and falsely caused to be presented J.H.[] claims by for means added).) payment of for [the form CMS-15005 . . . ." Relator similarly alleges fraudulently diagnosed patient N.G., Medicare program," unnecessarily with (Id. procedures medically Defendants "caused to procedures] 1500 not performed . . . ." These be 1 79.) the frontal allegations are frontal claims by specific and endoscopic Relator for alleges, payment means of for [the form CMS- substance of the to the enough fraud. He government participants. alleges on And he actually on the and N.G., alleges for the procedures that and that Form CMS-1500s requested payment J.H. satisfy the when they submitted them, the surgeries Dr. Williams performed on J.H. perform to Relator specifies who submitted the how they submitted them, Medicare in the (Id.) submitted claims both Williams sinusitis" necessary, N.G.[] requirements of Rule 9(b). claims, Dr. Despite the fact that these presented on on (footnote "a participant "bilateral sinusotomies on N.G." performed (Id. that also "chronic performed were procedures] that and Defendants following who were the forms Dr. Williams did not unnecessary procedures Dr. 5 A Form CMS-1500 is the form healthcare providers submit "when they seek reimbursement from a federal health insurance program." Clausen, 290 F.3d at 1306. Williams performed on N.G.6 the Court is satisfied Viewing these allegations together, that Relator has sufficiently alleged that Defendants submitted false claims to the government. In short, because Relator has pleaded with particularity that Defendants submitted false claims to the government, adequately pleaded Accordingly, the this that Court Defendants DENIES violated Defendants' motion to he has § 3729. dismiss on issue. B. 31 U.S.C. § 3730(h) Section 3730(h) "discharged . . provides . because of redress for lawful an employee acts done who by is the employee . . . in furtherance of an action under this section or other efforts 31 U.S.C. § to that [his 896-97 employer] (11th must establish a and the 6 To succeed on a subchapter." claim under § 3730(h), show that he "was engaged in protected conduct protected conduct." 894, or more violations of this 3730(h)(1). an employee must and stop 1 retaliated against him because Mack v. Augusta-Richmond Cty., Cir. 2005) (per curiam). of that 148 F. App'x Thus, an employee causal connection between the protected conduct termination of his employment. United States v. The Court notes that Relator pleaded the facts surrounding the other ten surgeries with less particularity. (See Doc. 24 H 80-81.) But Relator only needs to plead detailed information on some of his claims. See Clausen, 290 F.3d at 1312 n.21 ("Although [the relator] has provided none of these items of information here, some of this information for at least some of the claims must be pleaded in order to satisfy Rule need not separately address these allegations. 9(b)."). Thus, the Court Lockheed 2013) . Martin Corp., 927 F. Supp. 2d 1338, 1348 (N.D. Ga. And an employee can prove a causal connection by showing "that the protected activity and the negative employment action are not completely unrelated." Id. (citation omitted) (internal quotation marks omitted). Defendants connection argue between that Relator has the alleged protected termination of Relator's employment.7 face of his Williams's alleges complaint, improprieties that December he 2014 first when former patients. termination when he Relator in he 24 2015," had Dr. operated 5 87.) Relator conduct that he been Williams's on one Then, of [Meadows the Regional] complaint, noticed sent Employment Agreement." "[o]n Relator or a Dr. in Williams's another Williams, (Id. St 88.) about letter irregularity March 6, terminating and But 2015, his (Id. 5 93.) Defendants its decision could not have been motivated by Relator's reporting 7 Relator misconduct If Meadows Regional fired Relator in March 2015, argue, Dr. xx[s]hortly before his he reported his findings to Meadows Regional. to the reported fired. examined a different former patient of Dr. according and They contend that, on the alleges discovered Relator (Doc. May after failed to plead a causal of Dr. Williams's In their motion to dismiss, misconduct. This is so, they Defendants argue that Relator's proposed amended complaint (doc. 19-1) lacks sufficient factual allegations about Relator's protected conduct. They do not, however, make this argument with respect to Relator's later-filed complaint (doc. 24). 10 contend, his because the allegations 2015." (Id. complaint in must, see Am. 1057 (11th failed until f But light most United Life 2007), allege a that "[sjhortly before 88.) the Cir. to complaint provides viewing Ins. the Co. causal to v. Court his the favorable he allegations Relator, Martinez, cannot connection March that 2015, patients he he and received also the alleges reported that his termination in May 2015." to the complaint, letter say that (Doc. Court F.3d 1043, Relator his has protected Although Relator of Regional Dr. "shortly 5 88.) the Williams's before That in is, his according Relator was still employed at Meadows Regional reported his findings Meadows Regional have employment 24 in the 480 Meadows saw one findings when he his he as between from report termination in May conduct and the termination of his employment. alleges did not may agreement on sent in Dr. Williams. him a letter March 2015, Thus, about Relator although terminating has plausibly alleged that Meadows Regional did not officially fire him until after he reported Dr. clear that Relator before March 2015: Williams's misconduct. did not report Dr. Indeed, Williams's it is not misconduct the phrase "[s]hortly before his termination in May 2015" does not convey a definite time period. In sum, conduct and completely because the Relator has termination unrelated," of Lockheed, 11 alleged his 927 that his protected employment F. "are Supp. at 2d not 1348 (citation omitted) (internal quotation marks omitted), he has sufficiently pleaded a causal connection between the two events. Accordingly, the Court DENIES Defendants' V. The Court DENIES Defendants' motion AS MOOT Defendants' to Conclusion Defendants' dismiss motion on this issue. motion to strike (doc. 26) . The original motion to dismiss ORDER ENTERED at Augusta, Georgia this (doc. Court (doc. /4 25) and also DENIES 17). day of May, 2017. ,, p STATES DISTRICT COURT IERN 12 ^ CHIEF JUDGE DISTRICT OF GEORGIA

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