U.S. ex rel. Antoon v. Cleveland Clinic Found. (Summary)

FRAUD & ABUSE

U.S. ex rel. Antoon v. Cleveland Clinic Found., No. 3:12-CV-027 (S.D. Ohio Oct. 16, 2013)

The United States District Court for the Southern District of Ohio granted a hospital’s motion to dismiss the Anti-Kickback and False Claims Act (“FCA”) lawsuit brought by a patient-turned-relator who alleged that his hospital and physician engaged in fraud by stating that his surgeon personally performed the patient’s prostate surgery and billing for the procedure as such, even though other physicians and a physician assistant were allowed to participate.  Further, the patient/relator claimed that the hospital and physician engaged in an unlawful kickback scheme with a robotics supplier, pursuant to which the supplier paid kickbacks in exchange for the doctor recommending robotic surgery and inflating the quality of procedures performed with the robot.

Among other things, the court found that the relator could not maintain a false certification FCA claim (i.e., a suit alleging that the claim submitted to Medicare was a false claim because the care was provided in a manner that violated a statute or rule) based upon alleged violation of the conditions of participation by the hospital or doctor.  Rather, the relator would have had to allege violation of a statute or rule that created a condition prerequisite to payment.

Further, the court held that the relator (who had filed his complaint pro se) failed to adequately plead many of the technical elements of an FCA claim.  For example, the relator stated that a claim was filed, but did not identify the specific claim, the date it was submitted, or the specific services billed.  Likewise, he alleged no injury as a result of the alleged false claim.

The court concluded that the relator was not the original source of the information underlying his FCA claim because there had been numerous malpractice allegations brought against the doctor alleging that he falsely inflated the positive outcomes for robotic surgery and was paid by the robotics supplier.  Further, the doctor had authored publications on robotic surgery in which he admitted to having a financial relationship with the supplier.