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July 9, 2018: Tenth Circuit Rules Medical Judgment Is Subject to FCA Scrutiny

On July 9, 2018, the Tenth Circuit Court of Appeals issued its written opinion in the case of United States ex rel. Gerald Polukoff v. St. Mark’s Hospital, et al, holding that submitting claims to the federal government for reimbursement for unecessary medical procedures can be considered “fraudulent” within the meaning of the federal False Claims Act (FCA). This FCA qui tam action was initiated by relator Gerald Polukoff, M.D., a cardiologist in Utah, who provided documents and information to the federal government allegedly proving that one of his partners, Sherman Sorensen, M.D., performed thousands of unnecessary heart surgeries and received reimbursement for the procedures from the federal government through the Medicare Act by fraudulently certifying that the procedures were medically necessary. Dr. Polukoff alleged that the hospitals where the two cardiologists worked were complicit in the fraud, and that Dr. Sorensen and the hospitals reaped substantial financial benefit as a result of the fraud. The Tenth Circuit overruled the Utah District Court’s earlier ruling granting a motion to dismiss the case, holding that the lower court erroneously concluded that questionable medical judgment could not rise to the level of fraud sufficient to prove a violation of the federal False Claims Act. In so ruling, the Tenth Circuit noted that Medicare does not have an official policy for the heart procedures in question, but that Industry standards said that the procedures should only be considered after patients had suffered multiple strokes – a recommendation that Dr. Sorensen declined to follow, citing ethical concerns about waiting for a stroke to occur before performing surgery. According to the underlying Complaint, Dr. Sorensen billed for 861 such heart procedures in 2010, whereas the entire hospital clinic billed for just 37 procedures that year. The Tenth Circuit acknowledged that its decision could create more FCA exposure for doctors and hospitals, but noted that the U.S. Supreme Court’s recent landmark decision in the case of United States ex rel. Escobar v. Universal Health Services, Inc. requires submissions for reimbursement to be “material” and committed “knowingly” before FCA liability can attach. The significance of the Tenth Circuit’s decision in Polukoff is manyfold, and certainly is a cue to medical fraud whistleblowers and potential whistleblowers that medical judgment is indeed subject to scrutiny under the FCA. The Law Offices of Elizabeth “Booka” Smith, LLC has experience representing and advising FCA whistleblowers in the health care field. If you are a health care employee with knowledge of Medicaid/Medicare fraud, CONTACT US to schedule an appointment for advice on your best course of action.

February 21, 2018: US Supreme Court Narrows Dodd-F...
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