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FCA Defendant Abandons Petition Before the Supreme Court

This latest installment in our ongoing coverage of the Polukoff False Claims Act (FCA) qui tam case might be one of our last posts about the case.  Last week, Intermountain Health Care, Inc. and IHC Health Services, Inc. d/b/a Intermountain Medical Center (Intermountain), one of the hospital defendants in this matter, which had previously filed a Petition for a Writ of Certiorari with the U.S. Supreme Court on issues relevant to this case (as we reported in February), filed an Unopposed Motion to Dismiss before the high court. 

We understand from industry press that Intermountain and the relator in this case (Dr. Gerald Polukoff, a cardiologist who alleged that one of his cardiologist colleagues was performing medically unnecessary cardiac procedures and that defendant hospitals were billing for those services) have reached a settlement.  The remaining defendants continue to litigate the case in federal district court.

One of the questions Intermountain raised in its petition to the Supreme Court was whether a court may create an exception to Federal Rule of Civil Procedure 9(b)’s particularity requirement when the plaintiff claims that only the defendant possesses the information needed to satisfy that requirement.  Many in the FCA defense bar were interested to see whether – and how – the Supreme Court might address this question, but it appears we will have to continue waiting for an answer. 

In the meantime, we will continue to monitor the case pending before the federal district court, particularly with respect to issues related to medical necessity under the FCA.  As always, stay tuned for further updates.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume IX, Number 142



About this Author

Samantha P. Kingsbury Associate Health Care Compliance, Fraud & Abuse, and Regulatory Counseling

Samantha’s practice focuses on health care enforcement defense matters. These matters often involve criminal and administrative actions brought against health care providers and companies by state and federal governmental and regulatory agencies. She also has experience in assisting clients with internal investigations of potential violations of the federal anti-kickback statute, the Stark law, and the False Claims Act, among other statutes and regulations. Samantha also has experience preparing self-disclosures and other reports relating to such enforcement matters, as well as developing...

Brian P. Dunphy, Pharmaceutical Attorney, Mintz Levin, Anti-Kickback Lawyer,Health Care Enforcement & Investigations Health Care Compliance, Fraud & Abuse, and Regulatory Counseling Complex Commercial Litigation

Brian has handled a wide range of health care litigation matters, government investigations, and voluntary disclosures for an array of health care providers, life sciences companies, and private equity funds and their portfolio companies. He defends clients against allegations of false claims for payment to the government, in SEC investigations and enforcement proceedings, and represents clients in complex business disputes. Brian also counsels clients on health care regulatory issues, including telemedicine laws, compliance with the federal Physician Payments Sunshine Act and analogous state laws, and trains marketing and sales forces on compliance with these laws.

Brian is also committed to pro bono work. He has successfully represented an asylum seeker in removal proceedings, and a disabled student seeking a residential educational placement. Brian advises a nonprofit organization dedicated to researching and preventing traumatic brain injuries. As a result of his pro bono work, Brian was selected to participate in the Boston Bar Association’s Public Interest Leadership Program.

Before joining Mintz Levin, Brian worked for Accenture, a management and technology consulting firm. There, he was a project manager and provided consulting services to several large asset management firms.

During law school, he co-chaired the Grimes Moot Court Competition and was a member of the Frederick Douglass Moot Court team.