New Health Care Law Arrives With Announcement of $12 Million Recovery in Qui Tam Whistleblower Case Under False Claims Act

The major new “health care” law that the President signed this week, the Patient Protection and Affordable Care Act (Public Law 111-148), includes increased efforts to combat health care fraud and abuse, especially fraud in the Medicare and Medicaid programs.

It was significant that, on the very same day that this law took effect, an outstanding group of government prosecutors and investigators brought to an efficient conclusion a $12 million recovery of funds in a qui tam whistleblower case alleging health care fraud in violation of the False Claims Act. The case was brought by our firm, Finch McCranie, LLP, the Simpson Firm, LLC, and James G. Gustino, P.A..

The next day, after a meeting in Washington with the Department of Justice on another False Claims Act case, I sat in on the Senate debate of amendments to the new health care law. Whatever differing views may exist about many of the new law’s provisions, all taxpayers agree that stopping fraud in health care is an essential step to preserving scarce health care dollars.

We are proud to have been able to work with an excellent government team of lawyers and investigators in helping recover this $12 million for the American taxpayers. They are Renee Brooker and Eva Gunasekera of the Department of Justice, Ralph Hopkins of the U.S. Attorney’s Office for the Middle District of Florida, and Special Agent Robert Murphy of HHS-OIG.

A description of the case is below:

Melbourne Internal Medicine Associates (MIMA) of Brevard County, Florida, will pay $12 million to resolve a whistleblower lawsuit alleging hidden schemes to defraud Medicare and other federal programs in connection with radiation cancer treatment. This whistleblower case was successfully pursued by Finch McCranie, LLP and Simpson Law Firm, LLC, both of Atlanta.

After investigating the whistleblower’s claims, the U.S. Department of Justice joined the lawsuit and filed its own complaint alleging a sustained fraudulent course of conduct by the MIMA Cancer Center and its former Medical Director, Todd Scarbrough, MD. The government’s complaint contended that MIMA submitted millions of dollars of claims for radiation oncology services that were provided without required physician supervision, were never provided at all or were otherwise improper, and sought to hide the fraud through “sham” practices. The complaint also alleged that executives at MIMA were aware of a substantial number of the fraudulent billing practices.

“Health care fraud is incompatible with patient safety,” said Michael A. Sullivan, attorney with Finch McCranie, LLP, and author of the leading whistleblower blog https://www.whistleblowerlawyerblog.com. “These doctors were paid for personally supervising radiation treatments for cancer patients, but did not provide the supervision that they gave the appearance of providing. How would patients feel to learn that their doctor’s ‘supervision’ of a potentially dangerous radiation treatment was to set up an ‘autoreply’ to emailed images of the patients, which the doctor would not review at all, or would review too late to make adjustments before patients are irradiated? With growing concerns over how cancer patients can be overexposed to radiation even when physicians are supervising the procedures, how much harm can be caused when physicians fail to provide the personal supervision that they are paid to provide?”

Sullivan, along with G. Mark Simpson of the Simpson Law Firm, initiated the case in July 2008 by filing a qui tam complaint under the False Claims Act. “After the case was filed, we worked very closely with the government to develop the facts and analyze an enormous amount of documentation,” said Simpson. “The evidence, including internal e-mails and audit reports showing MIMA executives clearly had knowledge of the improper practices, was extremely compelling. The thoroughness and diligence of the federal attorneys and investigators allowed this case to be resolved relatively quickly,” he added.

After the extensive investigation, the government contended that, among other practices, MIMA routinely performed image-guided radiation therapy (IGRT) on patients without the required presence of a supervising physician. In some instances, IGRT claims were submitted when the physician was out of the country. Because MIMA was not in compliance with physician supervision requirements, the federal complaint alleged that Dr. Scarbrough created a system using hand-held devices that created the illusion of real-time physician supervision of IGRT, even though the defendants never intended to supervise the administration of this complex radiation therapy as required by Medicare.

Sullivan and Simpson worked with a forensic computer expert to unmask what the government called MIMA’s “sham” practices. “MIMA emailed images of patients to its doctors’ hand-held devices, but with our expert we identified for the government the types of data showing whether the doctors actually viewed these images,” said Sullivan. “As the Justice Department concluded, the AT&T data records clearly showed that the MIMA doctors made little use of these devices to review patients’ images.”

In addition, the Justice Department attorneys argued that MIMA often provided intensity modulated radiation therapy (IMRT) when there was no radiation oncologist on site, or when this therapy was not appropriate or justified. The complaint also alleged that MIMA engaged in other fraudulent practices such as upcoding, double billing and billing for services not performed.

“The False Claims Act is the government’s primary tool for recovering damages caused by fraud,” explained Simpson. “It provides for the recovery of treble damages and civil penalties for knowingly causing the submission of false or fraudulent claims for payments to the United States Government and for making or using false statements material to false or fraudulent claims paid by the United States. If the government intervenes, as it did in this case, a whistleblower is entitled to receive between 15-25 percent of the monies recovered under the Act.” The award here was 22 percent, or $2,640,000.

“The large amount recovered for taxpayers in this case was the direct result of hard work and diligence in a team effort by both the government counsel and investigators, and by private counsel,” said Sullivan. “American taxpayers are fortunate to have dedicated prosecutors working on their behalf such as Renee Brooker, Eva Gunasekera and Ralph Hopkins, who along with Special Agent Robert Murphy of the U.S. Department of Health and Human Services, worked this case with such perseverance.”

About Finch McCranie Finch McCranie, LLP is an Atlanta-based trial practice law firm that represents whistleblowers across the country in cases under the False Claims Act and the new IRS Whistleblower Program, and publishes a blog on whistleblower issues, https://www.whistleblowerlawyerblog.com. Founded in Atlanta over 45 years ago, the firm consists of seven attorneys. Partner Michael A. Sullivan participated in the drafting of Georgia’s new False Claims Act enacted in 2007, the State False Medicaid Claims Act. Finch McCranie has earned the highest rating from Martindale-Hubbell, which rates law firms nationwide. The firm’s website is www.qui-tam-litigation.com.

About Simpson Law Firm Simpson Law Firm, LLC is an Atlanta-based trial practice law firm. Since 2001, Mark Simpson has focused on representing whistleblowers in False Claims Act cases throughout the United States, both at the trial level and on appeal. The firm’s website is www.marksimpsonlaw.com.

About James A. Gustino, P.A.
James A. Gustino, P.A. is a law firm in Winter Garden, Florida that concentrates its practice in litigation.