Second FCA Whistleblower Case Dismissed – What’s a Lawyer to Do?

Second FCA Whistleblower Case Dismissed – What’s a Lawyer to Do?

By Christopher Parrella J.D., CHC, CPC, CPCO

For the second time in the last few weeks, a Florida district court judge has dismissed a whistleblower lawsuit filed against a healthcare company alleging fraud. The most recent dismissal, which took place on February 6, was of a lawsuit against electronic software company Epic that alleged it had over billed for anesthesia procedures.

In dismissing the suit, Judge James Moody Jr. of the Middle District of Florida in Tampa, found that the Relator, Geraldine Petrowski, “failed to meet the heightened pleading requirement for claims alleging fraud.”

Petrowski worked at WakeMed Health in North Carolina as supervisor of physician’s coding. She filed the complaint in 2015 alleging that the company’s billing software, used by hospitals across the U.S., caused there to be “hundreds of millions of dollars” in fraudulent payments to Medicare and Medicaid.

Although the government had the opportunity to intervene, it chose not to. The lawsuit was unsealed last November and Petrowski opted to move forward on her own. In her complaint, Petrowski pointed out that in 2012, Medicare adjusted its reimbursement for anesthesia billing from 15-minute increments to the actual time a physician spent on the procedure. Epic’s software, she alleged, allowed hospitals to bill for both the total time, as well as the 15-minute increments.

For its part, Epic said Petrowski misunderstood how claims software worked.

The judge found that the lawsuit failed to present any “credible allegations that any false or fraudulent claim was submitted to Medicare,” and that it was “unclear how Epic presented, or caused to be presented, a false claim to Medicare because there are no supporting details.”

In other words, Petrowski failed to provide the court with any specific details as to how, when and where the alleged fraud took place.

“This (case) is woefully deficient because it is based on pure speculation,” wrote Judge Moody.

The ruling comes on the heels of a similar dismissal of a whistleblower lawsuit we wrote about last month. In that case, a U.S. District Court judge found that the whistleblower, a former sales representative for RS Compounding LLC, a compounding pharmacy in Tampa, failed to make sufficient pleadings.

Although two dismissals don’t necessarily portend a trend, they can serve to provide important guidance on how judges are perceiving these kinds of cases and what attorneys need to consider when filing them.

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