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FCA Whistleblower’s Deficient Anesthesia E-Billing Suit Dismissed with Prejudice by Florida District Court

On February 6, 2018, the US District Court for the Middle District of Florida granted a motion to dismiss a non-intervened False Claims Act (FCA) suit concerning electronic billing practices for anesthesiology services. As with another recent dismissal, the court found that Relator had failed to present sufficient allegations to meet the particularity requirement of Federal Rule of Civil Procedure 9(b).

The operative complaint alleged that Relator was a compliance review specialist and supervisor of physician coding at a health care provider, and that she utilized the defendant, Epic System’s Corp.’s, medical e-billing software. Relator alleged that she was trained for a week on the software, and then allegedly identified a software issue that resulted in double-billing for the time of anesthesiologists. Specifically, Relator referenced a January 1, 2012, change in Medicare practices which adjusted “units to be billed” for anesthesia services to be measured in actual minutes rather than 15-minute increments. Relator asserted that the e-billing software allowed hospitals to “double-charge” 15-minute increments plus the precise number of minutes of service. Relator alleged that she raised this issue with the defendant repeatedly and that Defendant implemented a very narrow adjustment which would only fix the issue at Relator’s employer’s office, allegedly leaving the “double-charge” error in effect at other users’ offices.

In granting the defendant’s motion to dismiss, the court found that the complaint lacked the indicia of reliability required to state a claim under the FCA. Specifically, the court noted that the complaint failed to set forth any allegations of false representations by the defendant regarding its software, and observed that the complaint merely “parroted” the statutory language from the FCA. Furthermore, the court found that there were no credible allegations that any false claims were actually submitted to Medicare. The court went on to list the deficiencies of the complaint on this front, finding that it was “entirely unclear how [defendant] presented or caused to be presented a false claim to Medicare because there are no supporting details. [Relator] does not allege any facts about the alleged misrepresentation, like whether it was oral or written, what it consisted of, who made it and to whom, when it was made, where it was made, what claim was actually submitted to Medicare, by whom it was submitted, or when it was submitted. In other words, the second amended complaint fails the most basic test for Rule 9(b) particularity.”

The court further found that Relator’s allegation that the e-billing software “could” be used to file false claims with Medicare to be “woefully deficient” as it was based on “pure speculation,” and noted that her allegations amounted to nothing more than an assertion that the e-billing software “theoretically could have been used to lead to incorrect billing.” Furthermore, Relator failed to present any facts as to “how she knew other healthcare providers used the [e-billing] software.” The court concluded that the complaint fell “woefully short of stating a claim under the FCA.”

This ruling highlights the continued importance of the Rule 9(b) particularity requirement in FCA suits, and the need for a FCA plaintiff to identified specific examples of claims alleged to be falsely billed to the government. Relator’s attempt here to make hay of a hypothetical, speculative scenario fell “woefully” short of the requirement to plead the who, what, where and when of the alleged fraud. The case is United States ex rel. Petrowski v. Epic Systems Corp.

© 2020 McDermott Will & EmeryNational Law Review, Volume VIII, Number 58


About this Author


Emre N. Ilter is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office. He focuses his practice on complex commercial litigation and government investigations. Emre’s experience includes Section 337 actions at the U.S. International Trade Commission, domestic and international arbitration disputes, health care qui tam actions, congressional inquiries and mass tort litigation. Emre also has represented pro bono clients in a variety of matters, including asylum, intellectual property and appellate cases before federal and state...