Doctor can bring whistleblower claim vs. MGH.

Byline: Eric T. Berkman

A former doctor at Massachusetts General Hospital can bring a whistleblower suit under the federal False Claims Act over the hospital's alleged double and triple booking of surgeries, a U.S. District Court judge has ruled.

According to anesthesiologist Lisa Wollman, who filed the qui tam case on the government's behalf, MGH teaching surgeons, while circulating between surgeries, left patients alone with residents and fellows to perform key parts of the procedures without arranging for another qualified teaching physician to be immediately available in the event of an emergency.

That practice allegedly caused patients to remain under anesthesia for extended, medically unnecessary periods of time, something MGH allegedly did without patients' informed consent.

Because Medicare and Medicaid regulations bar teaching hospitals from billing the government for surgeries performed by residents without a teaching physician's direct supervision, Wollman contended that MGH's reimbursement requests constituted fraudulent claims for payment within the meaning of the False Claims Act.

MGH, in a motion to dismiss, argued that Wollman did not plead fraud with sufficient particularity to sustain her case and that the alleged rule violations were not material to the government's decision to pay the claims.

Judge Allison D. Burroughs disagreed.

Wollman provided "notable detail with respect to the commonplace occurrence of overlapping surgeries at MGH, including the date, surgeon, start time, location, duration, and type of surgery for numerous procedures" and "plausibly alleged that many of the surgeries that she provides detailed claim records for were conducted in violation of billing rules," Burroughs wrote in rejecting MGH's particularity argument.

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"This is a quintessential public interest case that many years down the road will be looked upon as a case that changed practices that put patients at risk."

Reuben A. Guttman, Washington, D.C.

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Regarding materiality, Burroughs continued, Medicare and Medicaid billing requirements may not be "the most central" to those programs overall, but they are "sufficiently central to the payment scheme for concurrent and overlapping surgeries to have received congressional attention and expressions of concern over noncompliance."

The 23-page decision is United States, et al. ex rel. Wollman v. The General Hospital Corporation, et al., Lawyers Weekly No. 02-309-19. The full text...