UNITED STATES OF AMERICA et al v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER et al
Filing
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MEMORANDUM OPINION AND ORDER re 23 Motion to Dismiss filed by UNIVERSITY OF PITTSBURGH MEDICAL CENTER, UNIVERSITY OF PITTSBURGH PHYSICIANS. It is HEREBY ORDERED that Defendants' 23 Motion to Dismiss is GRANTED and Counts I and II of the Complaint are hereby DISMISSED WITHOUT PREJUDICE. Ms. ZALDONIS may file an amended complaint to attempt to cure the deficiencies identified herein, on or before 5/28/2021. Signed by Judge Christy Criswell Wiegand on 5/14/2021. (jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, ex rel.
DIANA ZALDONIS,
Plaintiffs,
v.
UNIVERSITY OF PITTSBURGH
MEDICAL CENTER, UNIVERSITY OF
PITTSBURGH PHYSICIANS,
UNIVERSITY OF PITTSBURGH OF THE
COMMONWEALTH SYSTEM OF
HIGHER EDUCATION,
Defendants.
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2:19-CV-01220-CCW
MEMORANDUM OPINION AND ORDER
Before the Court is a Motion to Dismiss under Federal Rules of Civil Procedure 8(a), 9(b),
and 12(b)(6) filed jointly by Defendant University of Pittsburgh Medical Center (“UPMC”) and
Defendant University of Pittsburgh Physicians (“UPP”). See ECF No. 23. Because the Court
agrees with UPMC and UPP that Relator Diana Zaldonis has failed to adequately plead materiality,
as required under the False Claims Act, 31 U.S.C. § 3729 et seq., the Motion will be GRANTED.
Counts I and II of the Complaint will be dismissed without prejudice and Ms. Zaldonis will be
given leave to file an amended complaint.
I.
Background
A.
Procedural History
Ms. Zaldonis filed her sealed Complaint in this qui tam action on September 24, 2019. See
ECF No. 1; see also 31 U.S.C. § 3730(b) (providing for actions by private persons under the False
Claims Act). After the United States declined to intervene, ECF No. 5, the Complaint was unsealed
on June 5, 2020. See ECF Nos. 6–7. Defendant University of Pittsburgh filed an answer, see ECF
No. 25, while UPMC and UPP together moved to dismiss. See ECF No. 23. The Court held oral
argument on UPMC and UPP’s Motion on March 5, 2021. See ECF No. 40.
B.
The Alleged FCA Violations
The Complaint sets out four causes of action, only two of which are brought against UPMC
and UPP and are therefore relevant to the Motion. According to Ms. Zaldonis, UPMC and UPP,
in violation of 31 U.S.C. § 3729(a)(1)(A)–(B), knowingly presented false claims for payment to
government payors (Count I) and made or used false records or statements material to those claims
for payment (Count II).1 See ECF No. 1 at ¶¶ 131–138. In broad strokes, and as relevant to UPMC
and UPP’s Motion to Dismiss, the Complaint alleges as follows:
[B]etween at least 2013 and the present, attending surgeons in the
UPMC Department of Cardiothoracic Surgery, including but not
limited to doctors James Luketich and Pablo Sanchez, improperly
delegated the responsibility to obtain patients’ consent for surgical
procedures to residents, fellows, nurse practitioners, and physician
assistants, in violation of federal and state law as well as UPMC
policy. These cardiothoracic surgeons often signed a consent form
falsely certifying that they had explained to the patient all of the
information in the consent form, when, in fact, they had not.
ECF No. 1 at ¶ 7. UPMC and UPP would then bill government payors—specifically the U.S.
Centers for Medicare & Medicaid Services (“CMS”), the Defense Health Agency (administrator
of TRICARE), and the Veterans Health Administration Office of Community Care (administrator
of CHAMPVA)—“for hospital costs associated with cardiothoracic surgeries…as well as for
certain costs associated with the clinical trials for medical devices used during [lung] transplants”
where the primary surgeon allegedly delegated the task of obtaining patient consent to another
practitioner. See id. at ¶¶ 10–11. According to Ms. Zaldonis, this practice violated the False
The remaining claims in the Complaint, Counts III and IV, relate to Defendant University of Pittsburgh’s alleged
wrongful termination of Ms. Zaldonis after she reported the alleged issues with UPMC’s and UPP’s informed consent
practices. See ECF No. 1 at ¶¶ 122–130, 139–145.
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Claims Act, 31 U.S.C. § 3729 et seq., because “[t]hese claims [for payment] falsely certified
compliance with CMS regulations, including those requiring them to obtain their patients’
informed consent properly prior to surgery,” which in turn “caused Medicare and other
government payors to remit funds to UPMC and UPP.” ECF No. 1 at ¶ 104.
Because the FCA is concerned with “fraud, not medical malpractice,” Universal Health
Servs. v. U.S. ex rel. Escobar, 136 S.Ct. 1989, 2004 (2016), Ms. Zaldonis’ claims against UPMC
and UPP hinge on the allegedly false certifications made by UPMC and UPP in connection with
claims for payment submitted to government payors. According to the Complaint, UPMC bills
government payors using CMS Form 1450 (or its electronic equivalent, Form 837I), while UPP
uses Form 1500 (or its electronic equivalent, Form 837P). See ECF No. 1 at ¶ 100. UPMC and
UPP use these forms when submitting claims to CMS (for Medicare and Medicaid), the Defense
Health Agency (for TRICARE), and the Veterans Health Administration Office of Community
Care (for CHAMPVA). See id. These forms contain the following relevant certification language:
Form 1450: “Submission of this claim constitutes certification that
the billing information as shown on the face hereof is true, accurate
and complete. The submitter did not knowingly or recklessly
disregard or misrepresent or conceal material facts.”
Form 1500: “[T]his claim…complies with all applicable Medicare
and/or Medicaid laws, regulations, and program instructions for
payment including but not limited to the Federal anti-kickback
statute and Physician Self-Referral Law (commonly known as the
Stark Law).”
See ECF No. 1 at ¶¶ 100–102. In addition to the Form 1450 and Form 1500 certifications
accompanying every request for payment, Ms. Zaldonis also points out that UPMC and UPP
certified compliance “with applicable laws and regulations at the time of enrollment in Medicare.”
See id. at ¶ 103. Form 855A, Medicare’s Enrollment Application, which providers like UPMC
and UPP submit at the time they enroll in the program, requires providers to certify, in relevant
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part, that they “understand that payment of a claim by Medicare is conditioned upon the claim and
the underlying transaction complying with such laws, regulations, and program instructions
(including, but not limited to, the Federal anti-kickback statute and the Stark law), and on the
provider’s compliance with all applicable conditions of participation in Medicare.” See id.
C.
The Motion to Dismiss
UPMC and UPP advance three arguments in support of their Motion to Dismiss. First,
they contend that the Complaint fails to state a claim because it fails to identify an applicable
regulation prohibiting a patient’s principal surgeon from delegating the informed consent process
to other practitioners. See ECF No. 24 at 13. Next, UPMC and UPP argue that, even if delegation
of the informed consent process is prohibited, as alleged here, the Complaint fails to plead either
an express or implied false certification claim under the FCA. See id. at 18; see also ECF No. 34
at 11. In short, UPMC and UPP assert that because the certifications at issue do not make any
representations about the consent process used, do not specifically affirm compliance with any
consent-related regulation, and fail to adequately plead materiality, the Complaint fails to state
either type of false certification claim. Finally, UPMC Defendants maintain that the Complaint
satisfies neither Fed. R. Civ. P. Rule 8(a)’s plausibility requirement nor Rule 9(b)’s particularity
requirement. See ECF No. 24 at 25.
II.
Standard of Review
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim. In reviewing
a motion to dismiss, the court accepts as true a complaint’s factual allegations and views them in
the light most favorable to the plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d.
Cir. 2008). Although a complaint need not contain detailed factual allegations to survive a motion
to dismiss, it cannot rest on mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). That is, “a formulaic recitation of the elements of a cause of action will not do.”
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Id. Accordingly, “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” id., and be “sufficient to state a claim for relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than the sheer possibility
that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
The United States Court of Appeals for the Third Circuit has established a three-step
process for district courts to follow in analyzing a Rule 12(b)(6) motion:
First, the court must “tak[e] note of the elements a plaintiff must
plead to state a claim.” Second, the court should identify allegations
that, “because they are no more than conclusions, are not entitled to
the assumption of truth.” Finally, “where there are well-pleaded
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.”
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010)).
III.
Legal Framework – False Claims Act
“The False Claims Act is meant ‘to reach all types of fraud . . . that might result in financial
loss to the Government.’” U.S. ex rel. Petratos v. Genentech Inc., 855 F.3d 481, 486 (3d Cir.
2017) (quoting Cook Cty. v. U.S. ex rel. Chandler, 538 U.S. 119, 129 (2003)). In relevant part,
the FCA imposes liability on any person who: “(A) knowingly presents, or causes to be presented,
a false or fraudulent claim for payment or approval; [or] (B) knowingly makes, uses, or causes to
be made or used, a false record or statement material to a false or fraudulent claim.” 31 U.S.C. §
3729(a)(1)(A)–(B). Applying these provisions, the Third Circuit has held that four elements are
necessary to state a claim for violation of the FCA:
materiality.” Petratos, 855 F.3d at 487.
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“falsity, causation, knowledge, and
Claims for payment which violate the FCA fall into two broad categories: factually false
claims and legally false claims. A factually false claim is one in which “the claimant misrepresents
what goods or services that it provided to the Government.” U.S. ex rel. Wilkins v. United Health
Grp., Inc., 659 F.3d 295, 305 (3d Cir. 2011) (citing U.S. ex rel. Conner v. Salina Reg’l Health Ctr.,
Inc., 543 F.3d 1211, 1217 (10th Cir. 2008)). A legally false claim, on the other hand, is premised
on a “false certification” theory of liability, and occurs when “the claimant knowingly falsely
certifies that it has complied with a statute or regulation the compliance with which is a condition
for Government payment.” Id. (citing Conner, 543 F.3d at 1217). Legally false claims are further
categorized as being based on either express or implied false certifications. Id.
“Under the ‘express false certification’ theory, an entity is liable under the FCA for falsely
certifying that it is in compliance with regulations which are prerequisites to Government payment
in connection with the claim for payment of federal funds.” Id. (citing United States ex rel. Quinn
v. Omnicare Inc., 382 F.3d 432, 441 (3d Cir. 2004)). The “implied false certification” theory, on
the other hand, holds that where “a defendant makes representations in submitting a claim but
omits its violations of statutory, regulatory, or contractual requirements, those omissions can be a
basis for liability if they render the defendant’s representations misleading with respect to the
goods or services provided.” Escobar, 136 S.Ct. at 1999.
In either case, however, “a misrepresentation about compliance with a statutory, regulatory,
or contractual requirement must be material to the Government’s payment decision in order to be
actionable under the False Claims Act.” Id. at 2002. According to the Supreme Court, “[t]he
materiality standard is demanding. The False Claims Act is not ‘an all-purpose anti-fraud
statute,’…or a vehicle for punishing garden-variety breaches of contract or regulatory violations.”
Id. at 2003 (quoting Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662, 672 (2008)).
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Under the FCA, “the term ‘material’ means having a natural tendency to influence, or be capable
of influencing, the payment or receipt of money or property.” 31 U.S.C. § 3729(b)(4). Thus,
“[u]nder any understanding of the concept, materiality ‘look[s] to the effect on the likely or actual
behavior of the recipient of the alleged misrepresentation.’” Escobar, at 2002 (quoting 26 R. Lord,
Williston on Contracts § 69:12, p. 549 (4th ed. 2003)). As such, “a material misrepresentation is
one that ‘goes to the very essence of the bargain.’” Petratos, 855 F.3d at 489 (quoting Escobar,
136 S.Ct. at 2003 n.5).
IV.
Discussion
Whether read as asserting express or implied false certification claims, the Court concludes
that Ms. Zaldonis’ Complaint fails to adequately plead materiality;
i.e., that the federal
government would have refused to pay for certain surgeries had it known that UPMC and UPP
physicians were delegating the task of obtaining patient informed consent to other practitioners.2
While the Court stops short of concluding, as suggested by UPMC and UPP’s counsel at oral
argument, that informed consent violations cannot be material for FCA purposes, see Hr’g Tr. at
14:1–17, the Court finds that Ms. Zaldonis’ Complaint as currently pled fails to surmount the
“rigorous” materiality threshold required to state a claim under the FCA. See Escobar, 136 S.Ct.
at 2002.
The Complaint cites regulations applicable to Medicare, Medicaid, and CHAMPVA which
relate to patient rights. See ECF No. 1 at ¶¶ 36, 37–39; see also 42 C.F.R. § 482.13(b) (CMS
Neither the Complaint, Relator’s briefing, or the oral argument made clear whether or not Plaintiff is proceeding on
an implied certification theory. See generally ECF No. 1; see also ECF No. 30 at 17–18 (arguing that “Defendants
wrongly posit that Relator’s Complaint alleges only an implied false certification theory…ignoring the Complaint’s
references to express certifications,” but offering only argument on express false certification); Hr’g. Tr. at 5:2–4,
7:18–9:10 (discussing express false certification). Rather, Ms. Zaldonis’ arguments appear to focus on express false
certification. However, Defendant addresses both theories in its briefing. See ECF No. 24 at 18; ECF No. 34 at 11.
The Court’s decision here does not rest on the distinction between the two theories.
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“Condition of participation: Patient’s rights”); 42 C.F.R. § 482.24(c)(4)(v) (CMS “Condition of
participation: medical record services”); 38 C.F.R. § 17.32(c)(6) (VA regulation covering
“Informed consent and advance care planning”).3
For example, Medicare conditions of
participation provide that “[t]he patient has the right to participate in the development and
implementation of his or her plan of care” and that
The patient or his or her representative (as allowed under State law)
has the right to make informed decisions regarding his or her care.
The patient’s rights include being informed of his or her health
status, being involved in care planning and treatment, and being able
to request or refuse treatment.
42 C.F.R. § 482.13(b). From this baseline statement of patient rights flow certain other Medicare
conditions of participation relevant to Ms. Zaldonis’ claims. First, 42 C.F.R. § 482.24(c)(4)(v)
requires that a patient’s medical record contain “[p]roperly executed informed consent forms for
procedures and treatments specified by the medical staff, or by Federal or State law if applicable,
to require written patient consent.” Second, § 482.51(b)(2), related to surgical services, requires
that “[a] properly executed informed consent form for the operation must be in the patient’s chart
before surgery, except in emergencies.” Importantly, however, neither § 482.24(c)(4)(v) nor
§ 482.51(b)(2) (nor any other Medicare condition of participation of which the Court is aware)
defines or prescribes what it means for an informed consent form to be “properly executed.” See
ECF No. 30 at 9.
Attempting to fill this gap, Ms. Zaldonis highlights the phrase “specified by the medical
staff, or by Federal or State law if applicable” from § 482.24(c)(4)(v). She also points to
interpretive guidance from CMS’ State Operations Manual, which states that “[a]n informed
consent form, in order to be properly executed, must be consistent with hospital policies as well
3
The Complaint does not cite to any TRICARE-specific regulations related to informed consent. See ECF No. 1 at
¶ 36.
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as applicable State and Federal law or regulation.” See ECF No. 30 at 10; ECF No. 34-1 at 4.
Based on this language from the regulation and the CMS Manual, Ms. Zaldonis argues that the
formal requirements for a properly executed patient informed consent form are supplied by state
law and hospital policy. See ECF No. 30 at 10; HT at 22:19–23:6. And, she notes, under
Pennsylvania medical malpractice law, obtaining patient informed consent prior to surgery is a
non-delegable duty that rests with the lead physician. See ECF No. 30 at 11; HT at 23:2–6; see
also Shinal v. Toms, 162 A.3d 429, 455 (Pa. 2017). UPMC policy, reflecting Shinal, arguably
does not permit delegation either. See ECF No. 1 at ¶ 6 (quoting UPMC patient bill of rights,
which states, “[e]xcept for emergencies, a patient’s physician must obtain the necessary informed
consent prior to the start of any procedure or treatment.”). Therefore, Ms. Zaldonis reasons, a
physician who delegates obtaining informed consent to another practitioner violates applicable
federal regulations (like 42 C.F.R. § 482.24(c)(4)(v), which according to Ms. Zaldonis
incorporates state law and hospital policy), thereby rendering false any request for payment that
certifies compliance with applicable rules and regulations.
We need not decide today whether Ms. Zaldonis’ chain of reasoning, outlined above, is
correct. Assuming that it is, it would establish falsity, but would not overcome the hurdle of
demonstrating materiality. That is, neither the conditions of participation, nor CMS’ State
Operations Manual, nor the Pennsylvania Supreme Court’s decision in Shinal says anything, one
way or the other, about whether knowing that a physician delegated obtaining informed consent to
another practitioner would have any effect on the government’s decision to pay a claim.
In attempting to establish materiality, Ms. Zaldonis posits that materiality can be
determined by reference to three considerations, each of which she contends the Complaint
adequately addresses: “whether compliance with a statute is a condition of payment; whether the
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violation goes to ‘the essence of the bargain’ or is ‘minor or insubstantial’; and whether the
government consistently pays or refuses to pay claims when it has knowledge of similar
violations.” ECF No. 30 at 19 (quoting U.S. ex rel. Emanuele v. Medicor Assocs., 242 F. Supp.
3d 409, 431 (W.D. Pa. 2017) (citing Escobar, 136 S. Ct. at 2003)). Ms. Zaldonis asserts that (1)
informed consent is a “condition of payment” under Medicare regulations; (2) it is a “core patient’s
right” and therefore is “central to the bargain;” and (3) certain administrative law cases show the
government has excluded providers from participation in Medicare for failure to properly obtain
informed consent. See ECF No. 30 at 19–21.
Ms. Zaldonis’ arguments, here, are lacking. First, informed consent appears in regulations
touching on Medicare conditions of participation, not payment. Compare 42 C.F.R., Part 424 with
42 C.F.R., Part 482. The difference is important: although the Supreme Court in Escobar
recognized that violation of a condition of participation may be sufficiently important to be
material for FCA purposes, it is not necessarily so. And, as other courts have recognized, the
government has a robust administrative oversight scheme designed to maintain provider standards,
like informed consent processes. See, e.g., U.S. ex rel. Conner v. Salina Reg’l Health Ctr. Inc.,
543 F.3d 1211, 1220–21 (10th Cir. 2008) (describing hospital survey and plan of correction scheme
used to maintain compliance with conditions of participation). The upshot of this administrative
oversight system is that, contrary to Ms. Zaldonis’ assertion, where a provider is found to be
noncompliant, the government does not immediately suspend billing privileges or terminate
program participation; rather, the provider is given an opportunity to implement corrective action
before such drastic measures are taken. See id; see also 42 C.F.R. § 488.28. Second, and relatedly,
although 42 C.F.R. 482.24(c)(4)(v) identifies informed consent as a condition of participation, the
administrative cases cited by Ms. Zaldonis do not stand for the proposition that the government
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refuses to pay claims where the task of obtaining informed consent was delegated by a patient’s
principal surgeon; rather, at most, these cases reflect the fact that the government may penalize a
provider or terminate a provider’s ability to participate in Medicare after repeated failures to obtain
patient consent at all prior to treatment. See ECF No. 24 at 23–25 (summarizing administrative
cases cited in Complaint).
Even if we were to credit Ms. Zaldonis’ legal arguments in full, however, a fundamental
problem with her Complaint is that, with two exceptions discussed below, she fails to allege that
UPMC and UPP’s patients were not provided with important information about their care. Rather,
she asserts only that the (allegedly) wrong practitioner provided informed consent information.
Ms. Zaldonis, both in her papers and at oral argument, relies on U.S. ex rel. Wollman v. Gen. Hosp.
Corp., 394 F.Supp.3d 174 (D.Mass. 2019), which found, in part, that a relator had adequately pled
an FCA claim related to deficient informed consent. See ECF No. 30 at 4; Hr’g. Tr. at 47:18–
49:20. But Wolman is distinguishable, and the comparison to the allegations here highlights the
shortcomings of Ms. Zaldonis’ Complaint: to the extent Wollman stands for the proposition that
an informed consent violation can form the basis of an FCA claim, it says nothing about delegation.
In Wollman, surgeons at a teaching hospital scheduled concurrent and/or overlapping surgeries.
See id. at 179. In addition to other violations—for example, the surgeons in question allegedly
took no part in some of the procedures, contrary to the billing requirements for such surgeries—
the informed consent forms signed by patients prior to surgeries failed to inform the patients that
their primary surgeon was scheduled for overlapping/concurrent procedures and that important
parts of their surgery would be performed by other doctors. See id. at 184. In short, the informed
consent violation alleged in Wollman was not that the “wrong” practitioner obtained patient
consent but that the patients were not provided with important information about their surgery.
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Unlike Wollman, here there is no allegation that any of the patients for whom the informed
consent process was delegated by the lead surgeon to another practitioner did not receive adequate
information. Furthermore, the two exceptions mentioned above are not alleged to have involved
delegation at all.
First, Ms. Zaldonis alleges that Dr. Thomas Gleason totally failed to obtain patient consent
prior to surgery and then directed a resident to enter a note in the records falsely indicating that
Dr. Gleason had, in fact, obtained consent. See ECF No. 1 at ¶ 95. According to the Complaint,
the resident reported this deviation from protocol to Dr. Luketich, who said he would “look into
it.” Id. Viewing these allegations in the light most favorable to Ms. Zaldonis, the Court cannot
conclude that this apparently isolated failure to obtain informed consent prior to surgery is
sufficient to state an FCA claim on its own. Indeed, the allegation fails to identify whether the
patient was the beneficiary of any government healthcare program, like Medicare or TRICARE,
which on its own is fatal to this alleged incident supporting an FCA claim. See id. Furthermore,
even if the patient was such a beneficiary, an isolated incident of alleged medical malpractice is
not sufficient to meet the materiality showing required under Escobar. See 136 S.Ct. at 2004 (“We
emphasize, however, that the False Claims Act is not a means of imposing treble damages and
other penalties for insignificant regulatory or contractual violations.
This case centers on
allegations of fraud, not medical malpractice.”)
Second, the Complaint alleges, based on state court filings, that Dr. Sanchez failed to obtain
consent from patient Bernadette Fedorka for a lung transplant operation. See id. at ¶¶ 117–21.
But, importantly, the Fedorka allegations fail to describe the nature of the alleged informed consent
violation and give no indication that Dr. Sanchez delegated the task of obtaining consent to another
practitioner. See id. Indeed, what these allegations appear to claim is that consent was improperly
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obtained from Ms. Fedorka’s husband, despite Ms. Fedorka being capable of providing such
consent at the time of her surgery. See id. In sum, neither the incident involving Dr. Gleason nor
the incident involving Ms. Fedorka appears to have involved the alleged delegation “scheme”
described in the Complaint, and, importantly, neither set of allegations goes beyond describing
potential medical malpractice to assert that a fraud was committed against the government.
According to the Supreme Court in Escobar, “[t]he materiality standard is demanding. The
False Claims Act is not ‘an all-purpose antifraud statute,’ or a vehicle for punishing garden-variety
breaches of contract or regulatory violations.” 136 S.Ct. at 2003 (quoting Allison Engine, 553 U.
S. at 672). Applying Escobar, the Third Circuit has noted that “a material misrepresentation is
one that goes ‘to the very essence of the bargain.’” Petratos, 855 F.3d 489 (quoting Escobar, 136
S.Ct. at 2003 n.5). While the Court agrees with Ms. Zaldonis that informed consent is an important
part of medical care, we are not convinced that she has met her burden to show that the particular
delegation “scheme” she alleges here—to the extent it is a violation of applicable regulations at
all—would cause the government to deny payment. Accordingly, Ms. Zaldonis’ claims in Counts
I and II will be dismissed.
V.
Conclusion
For the foregoing reasons, the Motion to Dismiss filed by Defendants UPMC and UPP is
hereby GRANTED and Counts I and II of the Complaint are hereby DISMISSED WITHOUT
PREJUDICE. Ms. Zaldonis may file an amended complaint to attempt to cure the deficiencies
identified herein, on or before May 28, 2021.
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DATED this 14th day of May, 2021.
BY THE COURT:
/s/ Christy Criswell Wiegand
CHRISTY CRISWELL WIEGAND
United States District Judge
cc (via ECF email notification):
All Counsel of Record
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