The district court denied the defendants’ motion to dismiss a complaint alleging they submitted invoices to Medicare for unnecessary medical procedures. The defendants argued the relator was not qualified to make medical judgments, but the court noted the complaint did not rely on the relator’s medical knowledge, but alleged the procedures were necessary only with certain medical indications, where were not documented in the patients’ records. The defendants also argued the relator had not shown evidence that false claims were submitted, but the court noted the relator alleged she personally observed the unnecessary procedures and the Medicare billings, and provided a representative sample of patients, which was sufficient to survive a motion to dismiss.
Defendants Naples Heart Rhythm Specialists P.A. and Kenneth Plunkitt moved to dismiss a qui tam complaint alleging they conducted unnecessary procedures for which they billed Medicare and Medicaid.
Relator Andrea Schultz was employed by Naples as a registered nurse. According to the relator, during her employment, she witnessed physician Kenneth Plunkitt and NHRS perform unnecessary procedures related to patient pacemaker implants. While the procedures in question are considered dangerous and generally conducted only when an infection is present, Schultz alleged she witnessed Plunkitt perform such procedures multiple times when an infection was not present. The relator also alleged the procedures caused damage to the patients’ internal tissues unnecessarily, as pacemaker components often graft to heart tissue.
As part of her employment, the relator had access to Plunkitt’s records and billing forms, and personally observed his billings for the allegedly unnecessary treatments. The relator also alleged she witnessed Plunkitt engage in the medically unnecessary implantation of defibrillators and pacemakers, in some cases even before a study had been conducted of the patient’s status. Plunkitt would then attempt to provide a post hoc justification for the billing.
In its motion to dismiss, NHRS argued the relator’s belief that Plunkitt performed unnecessary procedures was premised on unqualified and unsupported opinions, and that the relator failed to plead this claim with particularity.
However, the court disagreed. First, the court noted the complaint asserted that the procedures in question are rarely medically necessary and that the kind of infections that lead to these procedures occur in only 1 to 3 percent of patients. The relator asserted the procedures were not necessary because she observed no infection, because no other adverse symptoms were present, and because the patients’ records had no indication of medical need for these procedures.
NHRS argued that the relator and her expert witness were not permitted to offer expert opinions about the standard of care applicable to Plunkitt and that her assumptions about infection rates are incorrect. However, the court noted that state law—not the defendant—governs who may provide expert testimony. The court also held that a dispute over the facts underlying the complaint would not be resolved in a motion to dismiss.
The defendant also argued Schultz failed to allege reliable, detailed information to identify a single false or fraudulent claim that NHRS submitted. However, the court found the relator stated she personally observed both the unnecessary procedures and the submission of invoices with the relevant billing codes. The complaint included the dates Plunkitt performed the allegedly unnecessary procedures on the representative patients, and included photographs of medical equipment used. The photos included the date of the procedures, as well as the redacted names and dates of birth of the patients. The relator also alleged the billing codes for the unnecessary procedures were included in procedure notes, meaning they were automatically billed.
While the relator did not provide details for the allegedly hundreds of unnecessary procedures and billings, the court found the evidence presented sufficient at this stage of the litigation. The defendants also argued the relator did not have access to billing documents in her job, but the court noted the complaint specifically stated she did and included a billing form. Finally, the defendants argued Schultz provided only conclusory statements that they had submitted false claims, but the court noted they ignored the relator’s first-hand observations in the complaint.
Next, the defendants also moved to dismiss the claim of false statements, again arguing there was no evidence the government paid a false claim. However, the court explained that government payment is not an element of a claim under this theory.
Finally, the defendants moved to dismiss the state claims on the same arguments, but for the same reasons, the court denied that motion.
