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)
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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