U.S. ex rel. Vuyyuru v. Jadhav

• Decision Date: 12 February 2009
• Docket Number: No. 07-1455.,No. 07-1922.,07-1455.,07-1922.
• Citation: U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337 (4th Cir. 2009)
• Parties: UNITED STATES of America ex rel. Lokesh VUYYURU, Plaintiff-Appellant, v. Gopinath JADHAV, M.D.; Southside Gastroenterology Associates, Limited; Columbia/HCA John Randolph, Incorporated; Petersburg Hospital Company, LLC; Cameron Foundation, a Virginia non-profit corporation, Defendants-Appellees, and Sealed Defendant 1; Sealed Defendant 2; Sealed Defendant 3; Sealed Defendant 4; Sealed Defendant 5; Community Health Systems Professional Services, Incorporated; Petersburg Hospital, Incorporated, Defendants, v. Sealed Movant; United States of America; John Reynolds, Doctor, Movants. United States of America ex rel. Lokesh Vuyyuru, Plaintiff-Appellant, v. Gopinath Jadhav, M.D.; Southside Gastroenterology Associates, Limited; Columbia/HCA John Randolph, Incorporated; Petersburg Hospital Company, LLC; Cameron Foundation, a Virginia non-profit corporation, Defendants-Appellees, and Sealed Defendant 1; Sealed Defendant 2; Sealed Defendant 3; Sealed Defendant 4; Sealed Defendant 5; Community Health Systems Professional Services, Incorporated; Petersburg Hospital, Incorporated, Defendants, v. Sealed Movant; United States of America; John Reynolds, Doctor, Movants.
• Court: U.S. Court of Appeals — Fourth Circuit

555 F.3d 337

UNITED STATES of America ex rel. Lokesh VUYYURU, Plaintiff-Appellant, v.Gopinath JADHAV, M.D.; Southside Gastroenterology Associates, Limited; Columbia/HCA John Randolph, Incorporated; Petersburg Hospital Company, LLC; Cameron Foundation, a Virginia non-profit corporation, Defendants-Appellees, andSealed Defendant 1; Sealed Defendant 2; Sealed Defendant 3; Sealed Defendant 4; Sealed Defendant 5; Community Health Systems Professional Services, Incorporated; Petersburg Hospital, Incorporated, Defendants, v.Sealed Movant; United States of America; John Reynolds, Doctor, Movants.

United States of America ex rel. Lokesh Vuyyuru, Plaintiff-Appellant, v.Gopinath Jadhav, M.D.; Southside Gastroenterology Associates, Limited; Columbia/HCA John Randolph, Incorporated; Petersburg Hospital Company, LLC; Cameron Foundation, a Virginia non-profit corporation, Defendants-Appellees, andSealed Defendant 1; Sealed Defendant 2; Sealed Defendant 3; Sealed Defendant 4; Sealed Defendant 5; Community Health Systems Professional Services, Incorporated; Petersburg Hospital, Incorporated, Defendants, v.Sealed Movant; United States of America; John Reynolds, Doctor, Movants.

No. 07-1455.

No. 07-1922.

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2008.

Decided: February 12, 2009.

ARGUED:

David J. Chizewer, Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd, Chicago, Illinois, for Appellant.John William Boland, McGuirewoods, L.L.P., Richmond, Virginia; Michael Randolph Shebelskie, Hunton & Williams, Richmond, Virginia, for Appellees.

ON BRIEF:

Thomas H. Roberts, Thomas H. Roberts & Associates, P.C., Richmond, Virginia, for Appellant.Martin A. Donlan, Jr., W. Benjamin Pace, Williams Mullen, Richmond, Virginia, for AppelleesGopinath Jadhav, M.D., and Southside Gastroenterology Associates, Limited; Rita Davis, Hunton & Williams, Richmond, Virginia, for AppelleesPetersburg Hospital Company, L.L.C., and Cameron Foundation; Jeremy S. Byrum, Nathan A. Kottkamp, McGuirewoods, L.L.P., Richmond, Virginia, for AppelleeColumbia/HCA John Randolph, Incorporated.

Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and MARTIN K. REIDINGER, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion.Senior Judge HAMILTON wrote the opinion, in which Judge KING joined.Judge REIDINGER wrote a dissenting opinion.

OPINION

HAMILTON, Senior Circuit Judge:

Relator Lokesh B. Vuyyuru(Relator Vuyyuru) appeals the district court's dismissal of, for lack of subject matter jurisdiction, his Third Amended Complaint, which complaint alleges various claims under the False Claims Act (FCA),31 U.S.C. §§ 3729-3733, and Virginia state law.He also challenges the district court's award of attorneys' fees and costs to one of the defendants.We affirm.

I.

On March 13, 2006, Relator Vuyyuru filed this qui tam action under the FCA.After amending the complaint three times, Relator Vuyyuru ultimately named Gopinath Jadhav, M.D.(Dr. Jadhav), Southside Gastroenterology Associates, Ltd.(the SGA Practice), Petersburg Hospital Company L.L.C., The Cameron Foundation, and Columbia/HCA John Randolph, Inc. as defendants(collectively Defendants).¹

Of relevance in the present appeal, in his Third Amended Complaint, Relator Vuyyuru alleged three separate counts under the FCA.In the first count, Relator Vuyyuru alleged Defendants"knowingly presented, or caused to be presented and filed, a false or fraudulent claim for payment or approval with the United States Government," in violation of 31 U.S.C. § 3729(a)(1).(J.A. 139).In the second count, Relator Vuyyuru alleged Defendants"knowingly made [or] used or caused to be made or used a false record or statement to get a false or fraudulent claim paid or approved by the Government," in violation of 31 U.S.C. § 3729(a)(2).(J.A. 139).In the third count, Relator Vuyyuru alleged that Defendants"conspired to defraud the United States government in violation of 31 U.S.C. § 3729(a)(3) by getting false or fraudulent claims allowed or paid to the damage of the United States' government."(J.A. 140).With respect to these three counts, Relator Vuyyuru sought an undetermined amount "duly trebled in addition to a fine of not less than $5,000 per violation and not more than $10,000 together with attorneys' fees and costs."(J.A. 142).

According to the Third Amended Complaint, Dr. Jadhav is a gastroenterologist, who practices medicine in Virginia at Southside Regional Medical Center²(SRMC) and John Randolph Medical Center³(JRMC), through the SGA Practice.Dr. Jadhav is the president and sole shareholder of the SGA Practice.As part of his practice, Dr. Jadhav performed medical procedures such as colonoscopies, endoscopies, esophago gastro duodonoscopies (EDG), percutaneous endoscopic gastrostomy tube placements (PEG tube placement), and biopsies.

We note, as did the district court, that the Third Amended Complaint is inartfully drafted.Nonetheless, we state with fair assurance that the crux of Relator Vuyyuru's claims under the FCA is that Defendants fraudulently billed the government, through the Medicare and Medicaid programs, for unnecessary or incomplete medical procedures performed by Dr. Jadhav.With respect to the nature of the alleged unnecessary medical procedures, the Third Amended Complaint alleges: (1) through March 2005, Dr. Jadhav, while performing colonoscopies, routinely took an unnecessary biopsy of the Ileocecal Valve (IC Valve) when he was unable to find a polyp; (2) Dr. Jadhav unnecessarily performed an EDG on a patient and a PEG tube replacement on consecutive days, when the two procedures could have been performed on the same day for a lower rate; (3) during sometime in the first half of 2002, Dr. Jadhav performed an unnecessary colonoscopy and biopsy of the IC Valve on a sixty-five year old female (4) in August 1997, Dr. Jadhav performed an unnecessary endoscopy on a seventy-two year-old female; (5) on November 27, 2001, Dr. Jadhav performed an unnecessary EDG with biopsy on a seventy-two year old female, and thirteen days later performed an unnecessary colonoscopy with biopsy on the same patient; and (6) on January 3, 2000, Dr. Jadhav performed an unnecessary colonoscopy on a seventy-one year old female.With respect to each alleged unnecessary medical procedure just listed in (2) through (6), the Third Amended Complaint alleges that Dr. Jadhav performed such unnecessary procedure "for the sole purpose of enhancing his income and that of SRMC and JRMC."(J.A. 133)(emphasis added).

With respect to the procedures allegedly not completed by Dr. Jadhav, but for which Defendants allegedly fraudulently billed the government, the Third Amended Complaint offers no information regarding individual patients.Rather, it alleges in general that "Dr. Jadhav frequently billed for the procedure of a colonoscopy and upper-endoscopy when Dr. Jadhav failed to complete the procedure."(J.A. 134).Moreover, almost as an aside, the Third Amended Complaint alleges:

Defendant Dr. Jadhav for a period of nearly 10 years failed to dictate the required consult note before billing, making minor notations only in the chart, while billing for a level 3 to 5 consult.At SRMC (different than his practice at JRMC)[ ] Dr. Jadhav routinely and in most cases did not provide a dictation for consults and failed to perform general multi-system examinations failing to follow CMS guidelines since 1997 for which he billed or caused to be billed to the United States Government as though the CMS guidelines were being met.

(J.A. 136).⁴

Of relevance to the issues in the present appeal, on October 6, 2006, Defendants moved to dismiss the Third Amended Complaint under Federal Rule of Civil Procedure 12(b)(1), contending that the jurisdictional bar set forth in 31 U.S.C. § 3730(e)(4) operated to bar Relator Vuyyuru's FCA claims.⁵Defendants attached evidentiary exhibits to their Consolidated Memorandum of Law in support of such motion, which exhibits they asked the district court to consider in resolving their jurisdictional challenge.In relevant part, § 3730(e)(4) provides as follows:

(e) Certain Actions barred.—

* * *

(4)(A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions ... from the news media, unless ... the person bringing the action is an original source of the information.

(B) For purposes of this paragraph, "original source" means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.

Id.

In support of their motion to dismiss for lack of subject matter jurisdiction, Defendants contended that the allegations in the Third Amended Complaint were derived from publicly disclosed information, and that Relator Vuyyuru did not carry his burden of establishing he was entitled to the "original source" exception to § 3730(e)(4)(A)'s public disclosure jurisdictional bar.

With respect to the public disclosure issue, Defendants contended that the allegations in the Third Amended Complaint were derived from numerous articles appearing in the Virginia Times newspaper prior to Relator Vuyyuru's initial filing of this action.At all times relevant to the allegations of the Third Amended Complaint, Relator was the publisher of the Virginia Times.Defendants attached the articles as exhibits to their Consolidated Memorandum of Law in support of their Rule 12(b)(1) motion, which memorandum of law stated the following on the subject:

On March 30, 2005, roughly a year before Plaintiff filed his Complaint, the Virginia Times newspaper published a front-page article titled "Alleged insurance, quality-of-care fraud at SRMC."(A copy of the article is attached...