The End to an 18 Year Old Anesthesia Whistleblower Lawsuit

BREAKING NEWS:  CMS released the final 2014 Physician Fee Schedule rule on Wednesday, November 27.  The Medicare conversion factor will be reduced by 20.1 percent, not 24.4 percent as projected last March—unless Congress intervenes, as most observers expect will happen.  Please see next week’s Alert for more information.

December 2, 2013

One of the longest-running Medicare whistleblower lawsuits, U.S. ex rel. El-Amin v. George Washington University (D.D.C. November 25, 2013), has apparently come to an end, without a trial.  Late last month, the United States District Court granted the defendant’s motion for summary judgment, which means that even if the plaintiff’s factual allegations were true, the defendant would prevail as a matter of law.

Four nurse anesthetists then employed by the George Washington University (GWU) brought a qui tam or whistleblower lawsuit against GWU in 1995.  They alleged that between 1989 and 1995, GWU had submitted thousands of claims to Medicare for anesthesiologists’ “personally performed” services that had in fact been performed in part by CRNAs or residents and that the hospital was thus in violation of the federal False Claims Act (FCA).  The original complaint also involved medically directed services that allegedly did not comply with the Medicare requirements; these charges had been dismissed in 2005. 

In the end, the case turned on the nature of the evidence offered by the plaintiffs (i.e., the CRNA “Relators” bringing the lawsuit on behalf of the United States Government), not on whether any of the anesthesia services were actually billed incorrectly.  The two FCA violations that remained by 2013 were (1) that GWU had knowingly presented false or fraudulent claims for payment to the Government and (2) that GWU had knowingly made or used false records or statements to get false claims approved by the Government.  The Relators attempted to establish the violations largely through “broad and sweeping generalizations about Medicare billing and procedures about which they clearly had no personal knowledge, as evidenced by their own deposition and GWU’s business records,” however.  Once the Relators were precluded from offering evidence at trial —

• Based on the conduct of various unnamed anesthesiologists referenced in addition to the fifteen attendings who were identified;
• Regarding anesthesia services in which the Relators were not involved but regarding which improper billing could be assumed based on allegedly routine, habitual or uniform practice;
• Alleging “spoliation” of business records through failure to preserve the billing claim forms, absent some indication that GWU had engaged in any misconduct,
• Regarding any cases that might have been billed to a payer other than Medicare, and
• That failed to identify, for each Medicare claim that was allegedly false:
  • the date the claim was submitted to Medicare,
  • the name of the attending anesthesiologist,
  • the type of procedure involved, and
  • the amount of the claim,

there did not appear to be a sufficient disagreement on the facts to allow the case to go forward.  In the memorable phrase of the United States Supreme Court in a 1986 decision (Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574), the party who seeks to go to trial must “do more than simply show that there is some metaphysical doubt as to the material facts.” 

The sheer passage of time since the events giving rise to the litigation had taken place undoubtedly worked to GWU’s advantage.  Memories faded and records were no longer available both because information technology had changed and because records had been moved to storage for legitimate business reasons.  It is not clear from the record whether or how much of the delay might have been created by the defendant.  The District Judge’s opinion suggests that the Relators received numerous opportunities to develop evidence.  Even with the appointment of a special magistrate to help the parties organize a database of the thousands of claims in contention and numerous evidentiary hearings, however, the Relators were unable to point to any evidence that could establish a violation of the FCA.  Accordingly, the judge—one of five different federal district judges to rule on aspects of the litigation—granted the defendant’s motion for summary judgment, saying that given the previous rulings, she had “little difficulty” concluding that no triable case existed.

This case does not add anything to our substantive knowledge of compliance with the Medicare rules, but it does demonstrate the importance of litigation strategy.  Win or lose, of course—and even where the law allows for an award of attorneys’ fees—litigation is expensive.  We hope that our readers will come no closer to making that discovery than reading summaries like this Alert.