FCA Retaliation Claim Survives Motion to Dismiss Even if Fraud Claims Do Not
In order to survive a motion to dismiss in a Qui Tam case alleging a violation of the False Claims Act (“FCA”), a Qui Tam relator must provide evidence that at least one claim was submitted to the Medicare and/or Medicaid Program for payment. Attaching medical notes to a complaint and then alleging that the defendant must have submitted claims to Medicare and/or Medicaid for the services that are described in those notes does not satisfy this requirement and the relators’ FCA claims related to these allegations were dismissed, with prejudice. Counts alleging making false statements, presenting a false record in order to obtain payment, reverse false claims, and a violation of the antikickback statute were also dismissed, with prejudice, for the same reason. However, the court refused to dismiss the relators’ claim, to the extent filed within the FCA’s three-year statute of limitations, that the termination of their employment stated a claim that they were retaliated against in violation of the FCA. United States and Michigan ex rel. Amine and Asbahi v. Team Health Holdings, Inc.
Class Action Involving a Hospital’s Website Permitted to Continue
A patient who used a hospital’s public website to research medical conditions and treatments, search for providers, pay bills, and use the hospital’s patient portal brought a class action lawsuit claiming that the hospital allegedly installed browser plug-ins that tracked and sent information, including protected health information (“PHI”) and personally identifiable information (“PII”), to third parties. The plaintiff claimed that after using the website, the patient saw targeted advertisements for therapies and care related to the medical issues for which she was using the website. The court found that the plaintiff has alleged that the defendant health system permitted the transmission of HIPAA protected information and denied the hospital’s motion to dismiss the plaintiff’s breach of fiduciary duty claim. While the court dismissed the plaintiff’s other counts, it did permit the plaintiff leave to amend most of the counts in her complaint a third time. Nienaber v. Overlake Hosp. Med. Ctr.
To Sleep Perchance to Dream of an FCA Claim
A federal district court dismissed the federal False Claims Act claims, and declined to exercise jurisdiction over the remaining state claims, that were brought by two sleep technicians who were allegedly suspended and then terminated by a hospital due to their efforts to dissuade patients from using machines that were the subject of a voluntary recall from the manufacturer. Hall and Carey v. Abington Mem’l Hosp.