U.S. ex rel. Dalitz v. Amsurg Corp. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Dalitz v. Amsurg Corp., No. 2:12-cv-02218-TLN-CKD (E.D. Cal. Dec. 24, 2014)

The U.S. District Court for the Eastern District of California denied an ambulatory surgical center’s motion to dismiss two nurses’ False Claims Act (“FCA”) claims, holding that liability attached when the ambulatory surgical center submitted forms for payment while not complying with Medicare regulations. Plaintiffs, two nurse anesthetists, were employed by defendant, an ambulatory surgical center. The two nurses became concerned about the ambulatory surgical center’s adherence to Medicare conditions, specifically, performance of a patient’s medical history and physical assessment, pre-surgical assessment, and anesthetic risk assessments before surgery.

After the nurses voiced their concerns to management, four patients underwent surgery at the ambulatory surgical center. The nurses alleged that these four patients did not have the proper pre-surgery assessments completed prior to their surgeries and that the ambulatory surgical center submitted claims to Medicare for payment. The nurses once again expressed their concerns to management; they were terminated four days later. The nurses sued, claiming that the ambulatory surgical center violated the FCA and retaliated against them. The ambulatory surgical center argued that the nurses failed to identify any false material statements made to the government for payment.

The court held that under the implied false certification theory, the nurses had only to identify the false claims in order to allege an FCA violation. The court explained that the ambulatory surgical center does not have to explicitly certify its compliance with Medicare regulations to violate the FCA. The certification is implied with the language of the Medicare payment form that the ambulatory surgical center submitted to the federal government. Moreover, the submitted form states that payment is conditioned on compliance with Medicare regulations.