Mikes v. Straus,

Mikes v. Straus,

Nos. 00-6269, 00-6270 (2d Cir. Dec. 19, 2001)

A board-certified pulmonologist (the “employee”) brought this False
Claims Act (“FCA”) suit against the physicians for whom she formerly
worked, alleging that the physicians’ failure to calibrate spirometers rendered
results so unreliable as to be “false” under the FCA. The employee
asserted that the submission of Medicare reimbursement claims for spirometry
procedures not performed in accordance with the relevant standard of care violated
the FCA. Affirming the district court’s grant of summary judgment in favor of
the physicians, the United States Court of Appeals for the Second Circuit held
that the physicians complied with Medicare’s HCFA-1500 form’s requirement that
a submitted claim must be for a procedure that was a “medical necessity.”
Because the term “medical necessity” only relates to the physicians’
decision to order the procedure for patients, and not to the quality in which
those procedures are performed, the court rejected the employee’s claim. Similarly,
the court rejected the employee’s “implied certification theory claim,”
holding that the Medicare statute’s requirement that a physician’s service be
“reasonable and necessary” pertains to the selection of the particular
procedure and not to its performance.