U.S. ex rel. Lockyer v. Hawaii Pacific Health
| Citation | 490 F.Supp.2d 1062 |
| Decision Date | 17 April 2007 |
| Docket Number | Civ. No. 04-00596 ACK-LEK. |
| Parties | UNITED STATES of America, ex rel. James LOCKYER; State of Hawaii, ex rel. James Lockyer; and James Lockyer, in his own behalf, Plaintiffs, v. HAWAII PACIFIC HEALTH; Kauai Medical Clinic; Wilcox Memorial Hospital; Wilcox Health System; and William A. Evslin, M.D., aka Lee A. Evslin, M.D., Defendants. |
| Court | U.S. District Court — District of Hawaii |
Arleen D. Jouxson, Rafael G. Del Castillo, Jouxson-Meyers & Del Castillo LLLC, Wahiawa, HI, Harry Yee, Office of the United States Attorney, Janice P. Kim, Honolulu, HI, for Plaintiffs.
Clarissa Y. Malinao, John-Anderson L. Meyer, Kenneth S. Robbins, Robbins & Associates, Sharon V. Lovejoy, Stephanie E.W. Thompson, Starn O'Toole Marcus & Fisher, Honolulu, HI, Edwin D. Rauzi, Davis Wright Tremaine LLP, Seattle, WA, Harry R. Silver, Patton Boggs LLP, Washington, DC, for Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT ON PLAINTIFFS' ORIGINAL COMPLAINT COUNTS I-IV
On October 1, 2004, James Lockyer ("Plaintiff Lockyer") filed a qui tam Complaint in this Court under seal on behalf of the United States alleging that Defendants Hawaii Pacific Health, Kauai Medical Clinic, Wilcox Memorial Hospital, Wilcox Health Systems, and Lee A. Evslin1 submitted or caused to be submitted false or fraudulent claims for payments from federal and state assistance programs. In addition, Plaintiff Lockyer alleged that Defendants improperly retaliated against him for opposing and reporting such improper practices. Plaintiff Lockyer's original Complaint alleges the following claims for relief:
Count I: Violation of federal and state False Claims Acts, 31 U.S.C. § 3729, et seq. and Haw.Rev.Stat. § 661-2.
Count II: Common law claim for retaliation in violation of a State of Hawaii public policy to prohibit the submission of false or fraudulent claims for payment to government assistance programs.
Count III: Violation of federal and state Whistleblower Protection Laws, 31 U.S.C. § 3730(h) and Haw.Rev.Stat. § 378-61, et seq.
Count IV: Claim for punitive damages.
The United States Attorney for the District of Hawaii intervened in the case on behalf of the United States on January 27, 2006. The case was unsealed the same day. The State of Hawaii has not intervened in the case.2 Defendants Hawaii Pacific Health, Kauai Medical Clinic, Wilcox Memorial Hospital, and Wilcox Health System ("HPH Entities") answered the Complaint on June 20, 2006. Defendant Evslin filed his Answer on July 6, 2006.
On December 22, 2006, Defendants HPH Entities filed a Motion for Summary Judgment on Plaintiff Lockyer's Complaint ("HPH Motion") and a Concise Statement of Facts ("HPH CSF"). The same day, Defendant Lee Evslin filed a Motion for Summary Judgment on Plaintiff Lockyer's Second, Third, and Fourth Claims for Relief ("Evslin Motion") and a Concise Statements of Facts ("Evslin CSF"). On December 27, 2006, Defendant Evslin filed a joinder in the HPH Entities' Motion for Summary Judgment. On December 29, 2006, the HPH Entities filed a joinder in Evslin's Motion.
On March 9, 2007, Plaintiff Lockyer filed an Opposition to Defendants HPH Entities' Motion for Summary Judgment ("Lockyer Opp. to HPH Motion") and a Concise Statement of Facts ( ). Plaintiff Lockyer also filed an Opposition to Defendant Evslin's Motion for Summary Judgment ("Lockyer Opp. to Evslin Motion") and a Concise Statement of Facts ( ). The United States joined in both of these Oppositions filed by Plaintiff Lockyer. The same day, the United States filed an Opposition to Defendants HPH Entities' Motion for Summary Judgment ("USA Opp. to HPH Motion"), which was joined by Plaintiff Lockyer.
On March 16, 2007, Defendants HPH Entities filed a Reply to Plaintiff Lockyer's Opposition to the HPH Motion ("HPH Reply to Lockyer Opp.") and a Reply to Plaintiff U.S.A.'s Opposition to the HPH Motion ("HPH Reply to U.S.A. Opp."), both of which were joined by Defendant Evslin. The same day, Defendant Evslin also filed a Reply to Plaintiff Lockyer's Opposition to Evslin's Motion ("Evslin Reply to Lockyer's Opp."), which was joined by Defendants HPH Entities.
On January 24, 2007, the Parties agreed to mediation before Mediator Clyde Matsui. However, as of the March 27, 2007 hearing, the parties have not apprised this Court of any effect of the mediation on the instant Motions.
On February 2, 2007, the Parties stipulated to amend the Complaint filed on October 1, 2004. The First Amended Complaint adds two additional claims that Defendants violated the federal False Claims Act, Counts V and VI, respectively. On February 20, 2007, Defendants HPH Entities filed a Motion to Dismiss the Fifth and Sixth Claims of the First Amended Complaint. Defendant Evslin joined the Motion to Dismiss on February 20, 2007. The Motion to Dismiss the Fifth and Sixth Claims of the First Amended Complaint is not before the Court at the instant hearing, which is limited to Defendants' Motions for Summary Judgment of the original complaint.
On March 19, 2007, Defendant Evslin filed a Motion to Strike Hearsay and Other Improper Testimony from Plaintiff Lockyer's Opposition to Evslin's Motion, which was joined by Defendants HPH Entities. At the same time, Defendant Evslin filed a Motion to Shorten Time to Hear the Motion to Strike. On March 21, 2007, the Court granted Defendant Evslin's Motion to Shorten Time and gave the Plaintiffs until noon on March 23, 2007 to file an Opposition to the Motion to Strike.
A hearing on Defendants HPH Entities' Motion for Summary Judgment (of the original complaint), Defendant Evslin's Motion for Summary Judgment on Plaintiff's Second, Third, and Fourth Claims, and Defendant Evslin's Motion to Strike was held on March 27, 2007 at 10:30 a.m.
Kauai Medical Clinic ("KMC") is an outpatient clinic adjacent to Wilcox Memorial Hospital in Lihue, Kauai. See HPH CSF at ¶ 1, Joseph Decl. at ¶ 2. KMC employed Plaintiff Lockyer as a physician specializing in internal medicine ("internist") from December 1, 1999 until he resigned on June 30, 2004. See Evslin Exhs. 9, 8; Complaint ¶ 20. In December of 2001, KMC and Hawaii Pacific Health (HPH) merged. See Lockyer Decl. ¶ 6. HPH is the parent entity to KMC, Wilcox Memorial Hospital, and Wilcox Health System. See Corporate Disclosure Statements filed by Defendants on June 7, 2006. Defendant Evslin was the President and CEO of Kauai Medical Clinic from 1996 through September of 2005 and CEO of `Wilcox Memorial Hospital from January of 2003 through September 2005. See Evslin CSF, Evslin Decl ¶ 2, Knudsen Decl. ¶ 6.
Due to the size of KMC, over the past several years it has never employed more than one oncologist at a time. See HPH Exh. 1, Joseph Decl. ¶ 3. Chemotherapy is administered in a large room called the "chemo suite" that is located within the internal medicine suite on the second floor of the Clinic, where the offices of all the internists are located. Id. at ¶¶ 3, 7. The chemo suite was usually open from 7:00 a.m. to 4:30 p.m. See Lockyer's CSF ¶ 6-a. The internal medicine physicians usually started seeing patients at 8:30 or 9:00 a.m. The Internal Medicine Department was closed for lunch from noon to 2:00 p.m. daily. Id. at ¶ 6-c.
Defendants HPH Entities allege they abided by the following procedure regarding chemotherapy administration: after an initial consultation, the oncologist provided a written order for each chemotherapy patient setting forth required blood tests, acceptable parameters for blood test results, and types and amounts of chemotherapy to be provided. See HPH CSF ¶ 3. Nurses in the chemo suite, whom Defendants allege were duly qualified, would review the blood test results and administer chemotherapy if the blood tests were normal and alert a physician if the tests were abnormal. Id. at ¶¶ 4-7. Defendants state that an oncologist was available 95-98% of the time chemotherapy was being administered, but if he or she was unavailable, another physician from the clinic's internal medicine department would be assigned to cover for the oncologist. See HPH Exh. "25," Dannog Decl. at ¶ 8; HPH CSF at ¶¶ 8-10. The oncology nurses were aware of which physician was covering in advance and would leave the charts of oncology patients for the covering physician to sign. See HPH CSF at ¶ 12. Defendants allege that there was always either an oncologist or covering physician available to respond to emergencies, which were unusual. Id. If blood results were within prescribed parameters and no emergency occurred, the supervising physician would not likely see the patient receiving chemotherapy. Id. at ¶ 15. If no physician was available, the nurses would not administer chemotherapy. Id. at ¶ 16. Defendants also allege that KMC's medical records demonstrate that Dr. Lockyer was the supervising physician for the chemo suite on certain occasions and that he received compensation for covering the chemo suite. Id. at ¶¶ 22-23.
Regarding administration and billing for chemotherapy, Plaintiff Lockyer alleges that KMC submitted 359 claims to Medicare for administration of chemotherapy by oncology nurses using his provider number. See Lockyer CSF re. Evslin ¶¶ 8-9. Lockyer alleges he never accepted an assignment to cover the chemo suite. Id. at ¶ 11. He further alleges that he and other internists were unaware of or did not understand Evslin's request that they sign off on chemotherapy notes to mean that they were assigned to supervise the administration of chemotherapy. See Lockyer's CSF re. HPH at ¶ 6-h. Plaintiff argues there was no chemo suite schedule assigning physicians to supervise nor did anyone notify the physicians that they were assigned to supervise the chemotherapy on a particular day. Id. at ¶¶ 6-e, 6-f. Lockyer...
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