November 29, 2021

Volume XI, Number 333

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November 29, 2021

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Whistleblowers Awarded Over $4.2 Million in Series of False Claims Act Cases for Exposing Surgeon Performing Unnecessary Spinal Surgeries and Illegally Profiting from the Sale of Medical Devices

May 7, 2021.  Two physicians blew the whistle on a neurosurgeon and the two medical device companies that he owned. It is alleged the neurosurgeon performed medically unnecessary surgeries on his patients, and received kickbacks from his two companies for using their medical devices.  As a result, the whistleblowers were awarded 20 percent of the government’s $4.4 million recovery under the False Claims Act.  These same whistleblowers received earlier rewards for separate False Claims Act settlements involving the same neurosurgeon.  One of those rewards was $3.4 million dollars and the other reward amount has not been made public yet.

Defendant Dr. Wilson Asfora and his two companies set out to profit handsomely from the kickback scheme. The process allegedly worked like this: The neurosurgeon performed spine surgeries on patients and in doing so, he used medical devices in his spine surgeries, which he received from his medical device company.  Dr. Asfora was paid kickbacks from his companies to use the medical devices.  This, in turn, incentivized him to perform more surgeries, including medically unnecessary surgeries in violation of the Anti-Kickback Statute.  The neurosurgeon also submitted false claims to federal healthcare programs such as the Medicare and Medicaid program for performing the medically unnecessary procedures.  Not only were the claims to the government tainted by the kickbacks but his medical judgment was also compromised by the inducement of payments for performing more surgeries.

The neurosurgeon also allegedly received direct payments or kickbacks from other device companies with which he had agreements.  Further, in exchange for using implantable devices used to deliver medication to patients, one company financially helped the Defendant host lavish parties at a restaurant he owned.

The government recovered not only $4.4 million from the neurosurgeon and his two medical device distributorships, but they also dinged his two companies another $100,000 for failing to report to the Centers for Medicare and Medicaid Services his ownership interest in the medical device companies, in violation of the Open Payments Program rules established under the Affordable Care Act.

Importantly, the surgeon and his medical device companies were also barred from receiving Medicare and Medicaid, and other federal health program dollars for six years, a significant penalty.

This case originated from a lawsuit filed by colleagues of the defendant neurosurgeon under the qui tam, or whistleblower, provisions of the False Claims Act.  Whistleblower lawsuits allow private parties, known as “relators,” to bring suit on behalf of the government and to share in any recovery. Whistleblowers are protected against retaliation under the whistleblower provisions of the False Claims Act.

© 2021 by Tycko & Zavareei LLPNational Law Review, Volume XI, Number 127
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About this Author

Jonathan K. Tycko leads the Whistleblower Practice Group of Tycko & Zavareei LLP

In recent years, the laws of the United States have undergone a whistleblower revolution. Federal and state governments now offer substantial monetary awards to individuals who come forward with information about fraud on government programs, tax fraud, securities fraud, and fraud involving the banking industry. Whistleblowers also now have important legal protections, designed to prevent retaliation and blacklisting.

The law firm of Tycko & Zavareei LLP works on the cutting edge of this whistleblower revolution, taking on even the most complex and confidential whistleblower...

202-973-0900
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