U.S. ex rel. Heesch v. Diagnostic Physicians Group, P.C. (Summary)

QUI TAM/RETALIATION

U.S. ex rel. Heesch v. Diagnostic Physicians Group, P.C., No. 11-0364-KD-B (S.D. Ala. Apr. 11, 2014)

The U.S. District Court for the Southern District of Alabama granted a motion to dismiss, filed by Infirmary Medical Clinics (“Medical Clinics”), in response to a relator’s third amended complaint.  The relator alleged in the complaint that he was employed by Diagnostic Physicians Group (“Physicians Group”) and that, as a result of his investigation and report, which showed that Physicians Group had violated the Stark and Anti-Kickback statutes, it had retaliated against him and terminated his employment.

In its motion to dismiss, Medical Clinics asserted that it did not employ relator, and thus could not retaliate against him.  In an effort to overcome this deficiency in the complaint, relator proposed a fourth amended complaint in which he alleged that due to the “inextricably intertwined relationship between Physicians Group and Medical Clinics, he was an ‘employee, contractor, or agent’ of all the defendants.”

The court concluded that relator might be able to establish that he had an “employer type” relationship with Medical Clinics for the purposes of the whistleblower provisions of the False Claims Act.  However, the court found that since the fourth amended complaint did not include any allegations of specific acts of retaliation on the part of Medical Clinics, including that Medical Clinics acted in concert with Physicians Group in retaliating against relator because of protected conduct, the claim for retaliation against Medical Clinics was futile and must be dismissed.