United States ex rel. Antoon v. Cleveland Clinic Found.

• Decision Date: 11 June 2015
• Docket Number: No. 13–4348.,13–4348.
• Parties: UNITED STATES of America ex rel. David F. ANTOON and Linda R. Antoon, Relators–Appellants, v. CLEVELAND CLINIC FOUNDATION and Intuitive Surgical, Inc., et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

788 F.3d 605

UNITED STATES of America ex rel. David F. ANTOON and Linda R. Antoon, Relators–Appellants

v.CLEVELAND CLINIC FOUNDATION and Intuitive Surgical, Inc., et al., Defendants–Appellees.

No. 13–4348.

United States Court of Appeals, Sixth Circuit.

Argued: Aug. 7, 2014.

Decided and Filed: June 11, 2015.

ARGUED:Matthew C. Schultz, Brannon & Associates, Dayton, Ohio, for Appellants. Matthew C. Corcoran, Jones Day, Columbus, Ohio, for Cleveland Clinic Appellees. Colter L. Paulson, Squire Sanders (US) LLP, Cincinnati, Ohio, for Appellee Intuitive Surgical. ON BRIEF:Matthew C. Schultz, Dwight D. Brannon, Brannon & Associates, Dayton, Ohio, for Appellants. Matthew C. Corcoran, Chad A. Readler, Jones Day, Columbus, Ohio, Stephen G. Sozio, Jones Day, Cleveland, Ohio, for Cleveland Clinic Appellees. Colter L. Paulson, Thomas A. Zeno, Squire Sanders (US) LLP, Cincinnati, Ohio, for Appellee Intuitive Surgical.

Before: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge.^*

LAWSON, D.J., delivered the opinion of the court in which McKEAGUE, J., joined and GIBBONS, J., joined in part and in the result. GIBBONS, J. (pp. 620–22), delivered a separate concurring opinion.

OPINION

DAVID M. LAWSON, District Judge.

When Colonel David Antoon (United States Air Force, retired) learned that he needed prostate surgery, he researched treatment options and specialists, which led him to the Cleveland Clinic and defendant Dr. Jihad Kaouk. Col. Antoon interviewed Dr. Kaouk and arranged for him to perform the operation, or so he thought. When Col. Antoon experienced complications following the surgery, his further investigation caused him to suspect that Dr. Kaouk did not actually perform the surgery, and passed off the major duties to a surgical resident. Based on that suspicion, Col. Antoon lodged complaints with several individuals and agencies, and he filed a medical malpractice action in state court, which was dismissed voluntarily. Finding no satisfaction, Col. Antoon brought the present lawsuit as a relator under the qui tam provisions of the False Claims Act (FCA), premised on the theory that Dr. Kaouk billed the government for work he did not perform, and promoted the robotic surgical device he recommended in violation of the anti-kickback statute. The United States declined to intervene, and the district court granted the defendants' motion to dismiss, after denying Col. Antoon leave to file a second amended complaint. Although we do not necessarily agree with some of the district court's grounds for dismissing the case and declining the amendment, we do find that Col. Antoon cannot maintain a false claims action against the defendants because of a jurisdictional bar. Col. Antoon does not have any direct and independent knowledge of the information upon which his fraud allegations are based; therefore he cannot qualify as an original source of that information, and cannot establish standing as a qui tam plaintiff under the FCA. On that basis, we affirm the judgment of the district court.

I. Facts and proceedings

Col. Antoon began this action by filing a pro se complaint under seal in the district court on behalf of himself and his wife. He followed that with an amended complaint. After the government declined to intervene and the lawsuit was served, the defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (6). Col. Antoon then obtained counsel, who responded to the motion and moved for leave to file a second amended complaint.

A. First amended complaint

In the first amended complaint, Col. Antoon alleged that he met with Dr. Kaouk on December 6, 2007 to discuss surgical options to treat prostate cancer

. At that meeting, Dr. Kaouk informed him that “robotic surgery was the safest surgical option and provided the best surgical outcomes for continence and potency.”

Moreover, Dr. Kaouk represented that “only he, not doctors in training, would perform [Col. Antoon's] major surgery.” Col. Antoon purportedly added language to the informed consent document that only Dr. Kaouk was authorized to perform the plaintiff's surgery.

On January 8, 2008, Col. Antoon underwent surgery, which resulted in multiple permanent complications causing disability and loss of employment. Col. Antoon alleges that he “did not see Jihad Kaouk in the operating room,” and told a surgical resident, Dr. Raj Goel that only Dr. Kaouk was authorized to perform his surgery. Dr. Goel called Dr. Kaouk twice from the operating room to express Col. Antoon's concerns and then directed surgery to proceed over Col. Antoon's objections. Dr. Kaouk called Ms. Antoon over the phone to say he “had trouble” and “got stuck,” apparently in an effort to explain the lengthy surgery.

On January 15, 2008, Col. Antoon returned to the hospital for post-surgery procedures. A physician's assistant removed Col. Antoon's surgical drain and catheter, but no physician or resident met with him. Col. Antoon alleged that he “began experiencing multiple complications” after the visit, which he communicated to Dr. Kaouk, but were not documented in his chart.

Since July 2009, Col. Antoon alleged that he lodged complaints with the Cleveland Clinic Foundation (CCF), the Ohio Department of Health, the State Medical Board of Ohio, the federal Centers for Medicare/Medicaid Services (CMS), the Joint Commission on Accreditation, and government insurance programs TRICARE and the Civil Health and Medical Program of the Uniformed Services (CHAMPUS). He submitted multiple Freedom of Information Act (FOIA) requests to state and federal agencies. He also filed a medical malpractice action in the Cuyahoga County, Ohio Court of Common Pleas. Other former patients of Dr. Kaouk contacted the plaintiff after a newspaper article was published about Col. Antoon's civil complaint.

The CCF ombudsman, Daniel DiCello, investigated Col. Antoon's complaint and concluded that there was “no indication that anything was done outside of the standard of care.” The ombudsman confirmed that “Staff Surgeon # 16 [Jihad Kaouk] performed all critical points of the surgical procedure, consistent with the information provide[d] to the patient prior to surgery” and “the surgical fellow [Raj Goel] was limited to non-critical points of the surgical procedure, as [is] typically the case with procedures of this type.” But Col. Antoon insisted that CCF's findings were “false and intentionally misleading.” Col. Antoon maintained that many records, documents, and communications were concealed, disappeared, or redacted to conceal complications from the surgery.

The amended complaint states a single claim under the FCA; it appears that Col. Antoon's theory was that CCF and Dr. Kauok violated several provisions of the TRICARE manual when submitting the bill for Col. Antoon's prostate surgery. The essence of the false claim was the submission of a CMS–1500 claim form for surgery by Dr. Kauok, when in truth the surgery was performed by an unsupervised surgical resident. The relators also alleged that Dr. Kauok, the CCF, and device manufacturer Intuitive violated the Medicare and Medicaid Patient Protection Act by falsely promoting the efficacy of the robotic surgical device Dr. Kauok recommended when the doctor received compensation from Intuitive. Presumably, they meant to cite the anti-kickback provision in 42 U.S.C. § 1320a–7b(b)(2). The relators made similar claims against the other defendants.

B. Proposed second amended complaint

The proposed second amended complaint, which was rejected by the district court on futility grounds, was considerably more detailed; it spanned 116 pages, contained 569 paragraphs, and included over 700 exhibits. But the theory of liability was the same: the defendants violated a condition of payment under the TRICARE and CHAMPUS programs when they submitted a CMS–1500 claim form and certified that the surgery was performed personally by Dr. Kaouk. The condition of payment was found in the TRICARE reimbursement manual. The plaintiffs alleged that several medical records do not indicate that Dr. Kaouk was present for the surgery or that the records were altered or signed weeks after the surgery to cover up multiple investigations for fraud. The second amended complaint would have added 26 state law claims as well.

The second amended complaint elaborated on Col. Antoon's experience in the operating room. He says that he met with an anaesthesiologist around noon to discuss the risks and benefits of anesthesia. Thereafter, Dr. Goel, a resident urologist, entered the room and called Dr. Kaouk. Col. Antoon was taken to the operating room shortly before 1:00 p.m. He asked Dr. Goel why Dr. Kaouk was not present. Dr. Goel stated that Kaouk was in another surgery, but would arrive shortly. Goel stated to the anesthesiologist “Let's get going! We are late.” Col. Antoon was under anesthesia

from 1:05 p.m. until 5:20 p.m.; the surgery began at 1:45 p.m. and concluded at 4:47 p.m. Col. Antoon “never saw Kaouk” prior to the anesthesia or in recovery.

Col. Antoon's wife, Linda Antoon, told her husband that Dr. Kaouk “paged her to a telephone to inform her that he had ‘trouble’ and ‘got stuck.’ ” Dr. Kaouk met with Col. Antoon the next day and informed him that “it took him more time to get the bowel adhesion

down, because there was a lot of adhesions, and that he needed the extra 40 minutes to get all the bowel adhesions out of the way.” Dr. Kaouk expected a full recovery. However, during a meeting in December 2008, Dr. Kaouk said that Col. Antoon did not have adhesions and that Dr. Kaouk “probably placed clamps on his nerves.”

In the proposed second amended complaint, the Antoons alleged that the CMS–1500 claim form Dr. Kaouk submitted contained a legend below Dr. Kaouk's signature stating: “I certify that the statements on the reverse apply to this bill and are made a part thereof.” The reverse side of the CMS–1500 form stated:

I certify that the services shown on this form were medically indicated and

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