U.S. ex rel. Donegan v. Anesthesia Assocs. of Kansas City, PC (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Donegan v. Anesthesia Assocs. of Kansas City, PC
No. 4:12-CV-0876-DGK (W.D. Mo. July 28, 2014)

The United States District Court for the Western District of Missouri granted in part and denied in part a suit alleging violations of the False Claims Act brought by a certified registered nurse anesthetist (“CRNA”) against his former employer, ananesthesia group. According to the CRNA’s complaint, the anesthesia group submitted bills to Medicare claiming that anesthesia was provided under the “medical direction” of a physician even though a physician did not prescribe the anesthetic and was not present when a patient came out of general anesthesia. The complaint also alleged that the CRNA was terminated after, and in retaliation for, informing his supervisor that he would no longer check the box on the group’s billing forms indicating that anesthesia was given under “medical direction.” The complaint did not allege that the CRNA reported to his supervisor that the group was engaged in fraudulent activity.

The anesthesia group filed a motion to dismiss. The court refused to dismiss the CRNA’s first two claims under the False Claims Act, finding that the CRNA had sufficiently pleaded the “who, what, when, where, and how” of the purported fraud. However, the court granted, without prejudice, the anesthesia group’s motion to dismiss the CRNA’s retaliation claim, instructing that it could not “find any authority suggesting that an employee’s failure to do something he has been instructed to do – such as routinely mark a box on a form – somehow puts the employer on notice that the employee was engaged in protected activity.”