U.S. ex rel. Smith v. Yale University

• Decision Date: 14 February 2006
• Docket Number: No. 3:00CV1359 (PCD).,3:00CV1359 (PCD).
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel., Robert C. SMITH, M.D., Plaintiff, v. YALE UNIVERSITY and Yale-New Haven Hospital, Inc., Defendants.

415 F.Supp.2d 58

UNITED STATES ex rel., Robert C. SMITH, M.D., Plaintiff, v. YALE UNIVERSITY and Yale-New Haven Hospital, Inc., Defendants.

No. 3:00CV1359 (PCD).

United States District Court, D. Connecticut.

February 14, 2006.

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Craig Thomas Dickinson, Madsen, Prestley & Parenteau, LLC, Hartford, CT, Jacques J. Parenteau, Madsen, Prestley & Parenteau, New London, CT, Mary Alice Leonhardt, Peter Burgoyne Prestley, Madsen, Prestley & Parenteau, LLC, Hartford, CT, Stephen M. Kohn, Kohn, Kohn & Colapinto, LLP, Washington, DC, for Robert C. Smith M.D., USA, ex rel., Plaintiff.

Carl H. Loewenson, Jr., Morrison & Foerster, J. Alexander Lawrence, Morrison & Foerster—NY, New York, NY, Kenneth D. Heath, Wiggin & Dana, New Haven, CT, Stanley R. Soya, Morrison & Foerster, LLP—VA, McLean, VA, William J. Doyle, Wiggin & Dana, New Haven, CT, Patrick M. Noonan, Donahue, Durham & Noonan, Concept Park, Steven M. Barry, Delaney, Zemetis, Donahue, Durham & Noonan, Concept Park, Guilford, CT, for Yale Univ, Yale New Haven Hospital Inc., Defendants.

RULING ON DEFENDANT YALE-NEW HAVEN HOSPITAL'S MOTION TO DISMISS

DORSEY, District Judge.

Pursuant to Rules 9(b), 12(b)(1), 12(b)(6) and 12(h)(3) of the Federal Rules of Civil Procedure, Defendant Yale-New Haven Hospital, Inc. ("YNHH") moves to dismiss the Second Amended Complaint.¹ For the reasons stated below, Defendant's Motion [Doc. No. 169] is granted.

I. BACKGROUND²

This lawsuit arises from Plaintiff-Relator's ("Relator") employment with Yale University ("Yale") and YNHH. Relator alleges that Defendant YNHH violated the federal False Claims Act, 31 U.S.C. § 3729, et seq., as amended ("FCA"), by falsely billing and retaining payments from the Medicare and Medicaid Programs for certain radiological services (Count One). Relator also alleges that YNHH and Yale unlawfully retaliated against Relator in violation of the FCA, 31 U.S.C. § 3730(h) (Count Two) and brings a defamation claim against YNHH and Yale (Count Three).

Relator Robert C. Smith is a medical doctor licensed to practice medicine in Connecticut and New York and is a resident of the State of New York. Relator was employed by Yale beginning in July 1, 1990 until he was allegedly "forced out" on June 30, 1999. He began as an Instructor at the Yale School of Medicine, was promoted to Assistant Professor in July 1991 and became an Associate Professor in July 1996. Moreover, Relator has served as Associate Professor, Department of Diagnostic Imaging; Chief, Section of MRI, Department of Diagnostic Imaging at Yale's School of Medicine; Director, Magnetic Resonance Imaging Center; and attending staff physician at YNHH. Most recently, Relator served as a Professor of Radiology and Associate Chair of Information Technology and Systems Administration, Department of Radiology, Cornell University Joan and Sanford I. Weill Medical College, New York Presbyterian Hospital from 1999 until the summer of 2003. Defendant YNHH is reimbursed by Medicare for providing services to eligible patients. According to Relator, YNHH operates a graduate medical education ("GME") Residency Program paid for, at least in part, by the Medicare Program and under which members of Yale's School of Medicine faculty and attending physicians at YNHH train Residents and Fellows.

The Department of Health and Human Services, acting pursuant to the Medicare statute, has promulgated regulations governing reimbursement for medical services provided to Medicare beneficiaries, including radiological tests and studies. In order to be reimbursed by Medicare for services provided to its beneficiaries, medical service providers must certify that they have complied with applicable requirements in the regulations. Pertinent to this action, Medicare and Medicaid pay only for services that are reasonable, medically necessary and utilized for diagnostic and therapeutic purposes in connection with health care services provided to Medicare and Medicaid beneficiaries. 42 U.S.C. § 1395y(a)(1). If a radiological test is performed by a Resident or Fellow participating in the GME Residency Program at a Teaching Hospital, Medicare and Medicaid will only pay for the Professional Component of diagnostic Radiology Services interpretations that are performed by, reviewed by or interpreted under the supervision of a Teaching Physician. 42 C.F.R. 415.172. Accordingly, the form that physicians must submit to Medicare and Medicaid in order to be entitled to reimbursement includes the following certification: "Signature of Physician or Supplier: I certify that the services shown on this form were medically indicated and necessary for the health of the patient and were personally furnished by me or were furnished incident to my professional service by my employee under my immediate personal supervision." CMS Form 1500 (the Medicaid certification is identical except that it does not include the word "immediate").

Relator alleges that during his employment, YNHH and Yale violated the FCA by improperly billing and retaining payments from the Medicare and Medicaid Programs for (1) radiological studies for which the signing radiologist did not review the associated image and/or the preliminary report, including alleged billing for: (a) the "clean up project," (b) the use of the "Autosign" function on the hospital computer system and (c) the review of reports of neuroradiology fellows; (2) studies by radiologists who were not qualified teaching physicians; and (3) medically unnecessary studies, including alleged billing for old studies and unnecessary panels of studies in the emergency room. In an effort to bill for these radiological studies, Relator alleges that YNHH and Yale knowingly engaged in improper billing schemes by falsifying and altering patient records, submitting bills which they knew were in violation of Medicare and Medicaid billing requirements and falsely certifying that they were in conformity with applicable regulations and minimum standards of patient care.

A. Relator alleges that YNHH and Yale billed for radiological studies for which the signing radiologist did not review the associated image and/or the preliminary report

Relator alleges that from July 1997 to July 1998, one or more Teaching Physicians finalized Radiology Reports for billing purposes without having ever reviewed the Radiology Study and without having dictated, edited or reviewed the final report. According to Relator's allegations, the Teaching Physicians' practice of finalizing the reports in this way "contributed nothing to the diagnosis and/or care of the patient" and therefore "both the Technical Component and the Professional Component were improperly billed to the United States government." 2d Am. Compl. ¶ 84.

Relator also alleges that a "clean up project," involving the finalization of reports by Yale faculty members after the films had been reviewed by volunteer faculty members, took place between March and May 1998. Relator alleges that Yale fraudulently billed for the Professional Component for interpretations of old radiological studies that were neither performed under the supervision of the attending physicians nor independently reviewed by the attending physician and which had no therapeutic or diagnostic value at the time they were finalized. Relator's allegations concerning the clean up project principally involve a complaint by one of his colleagues, Dr. Burrell, alleging that he was coerced to sign off on or finalize reports of Radiology Studies for patients seen two years prior with whom Dr. Burrell had never been involved. Dr. Burrell claims that the cases appeared on his sign out queue with his name listed as the attending physician of record. After he refused to sign off the reports, his name was removed and Dean Glickman's, who allegedly promptly signed off on the reports, was substituted. Id. ¶¶ 58-65, 80-82.

Relator alleges that YNHH used the "Autosign" function on the hospital computer system to reflect a fictitious qualified "Responsible Radiologist" of record for the purpose of finalizing radiology reports which were dictated by YNHH's radiology Residents and Fellows but were never reviewed approved, edited or certified by the Residents' or Fellows' Teaching Physician as required pursuant to the Medicare laws. According to Relator, Autosign was also created for the purpose of finalizing preliminary reports which were dictated by Qualified Radiologists but never reviewed, edited, approved or certified by them prior to finalization. Id. 20, 58-72, 76-78. Relator further alleges that Autosign has additionally been used to move Radiology Studies from "C" status, indicating that a study has never been interpreted, to "F" status, indicating that a study has been interpreted and certified. Id. 1120. Relator alleges that since January 1, 1998, at least 1,594 reports of Radiological Studies have been finalized using the Autosign process. Defendant claims that in the email from Felicia Tencza, Yale's Associate Business manager for the Radiology Department, quoted by Relator in paragraph 58 of the Second Amended Complaint, she made clear that Autosign was created "for the express purpose of flagging preliminary reports for which the slides had been lost before the attending could review them so that Medicare would not be billed." Mem. Supp. at 3.³

Relator alleges that a number of faculty members, including himself, repeatedly complained to YNHH Administrators, on both ethical and legal grounds, about the use of Autosign, 2d Am. Compl. ¶ 58-62, and that as a result of his frustration with the University and Hospital's apathy towards his concerns, he undertook a "comprehensive review" of radiological records dating back to 1998. Upon review, Relator claims that he discovered that "thousands" of reports of Radiology Studies reflecting the initial interpretations of Residents and Fellows had been...