By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In a recent decision, the United States District Court for the Middle District of Florida refused to dismiss a second amended complaint for a False Claims Act (FCA) Retaliation Action. The Florida federal court found that the second amended complaint filed in the case adequately stated protected conduct the former employee engaged in as an effort to prevent and stop further FCA violations by the alleged offending hospital. Therefore, it properly stated a cause of action.
The Facts of the Case.
Brenda Farnsworth, former Vice President of Quality and Risk Management for Northside Hospital, was placed on administrative leave for alleged insubordination in February of 2012. A whistleblower action by Farnsworth against the hospital and its parent company, HCA, Inc., quickly followed, but the government did not intervene.
Farnsworth dismissed her original complaint and filed a second claim, this time an FCA retaliation claim per Section 3760(h), 31 United States Code. The Court dismissed that claim without prejudice, however, due to Farnsworth’s failure to properly demonstrate any specific protected conduct she engaged in as an effort to prevent or stop the alleged FCA violations.
To see the full Order of the court dated May 29, 2015, click here.
Requirements for Filing a Successful Claim.
A showing of protected conduct (in furtherance of an FCA enforcement action by way of a whistleblower lawsuit) in an effort to prevent or remedy fraudulent activity is necessary in order to successfully file an FCA claim. Specific actions of internal reporting or other alternative means to a lawsuit need to be outlined in the complaint.
Dismissing an action without prejudice allows the Plaintiff the opportunity to remedy the defect in the complaint and re-file the claim.
The Third Time’s a Charm.
Farnsworth filed her second amended complaint and the defense again moved to dismiss it. However, this time the court found that Farnsworth had satisfactorily corrected the errors in her retaliation claim to meet the standards set forth for filing a claim under the FCA.
Farnsworth alleged defendants were billing Medicare and Medicaid for treatments not performed by attending physicians, falsifying medical records for services ordered by a physician on suspension, double billing for unauthorized medical research, and billing for tests and treatments that were not medically necessary.
For more information on the allegations raised, click here to read about the case at its’ commencement in 2013.
Furthermore, Farnsworth detailed instances in which she internally reported the alleged fraudulent activity to specific members of management within Northside Hospital and HCA. Such internal reports constituted a showing of an effort to stop the illegal activity and prevent further violations to satisfy the requirements for an FCA claim.
Therefore, the court denied the alleged defendants’ motion to dismiss as to HCA, Inc. and Northside Hospital.
To read more on the court’s full decision of September 8, 2015, upholding the Second Amended Complaint, click here.
The Purpose of the False Claims Act and Relief from Retaliation.
The FCA has become the government’s main line of defense against health care fraud and abuse. The FCA allows any employee with knowledge of fraudulent activity to bring a civil suit against an employer in the name of the government.
Furthermore, the government protects such employees from any retaliation by the employer for reporting alleged health care fraud and abuse. Section 3730(h)(1), 31 United States Code states:
“Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.”
The Health Law Firm is highly experienced in assisting health care employees with whistleblower, qui tam, and retaliation claims under the FCA.
To learn more on whistleblower/qui tam cases, read our two-part blog. Click here for part one and click here for part two.
Editor’s Comments:
Brenda Farnsworth, the plaintiff in this case, had been the hospital’s Vice President of Quality and Risk Management. When she did the correct thing, to protect patients, it is alleged that she was retaliated against. Physicians, nurses and hospital employees should always do the right thing. When superiors refuse to take action or, worse, retaliate against you, blow the whistle!
Comments?
Do you have knowledge of or have you ever suspected health care fraud or abuse in your workplace? Please leave any thoughtful comments below.
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Attorneys with The Health Law Firm also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.
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Sources:
American Health Lawyers Association. “U.S. Court in Florida Refuses to Dismiss FCA Retaliation Action Against Health System.” Fraud and Compliance: AHLA. 25 Sept. 2015. Web. 28 Sept. 2015.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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