U.S. ex rel. El-Amin v. George Washington Univ.

• Decision Date: 04 February 2008
• Docket Number: Civil Action No. 95-2000 (CKK).
• Parties: UNITED STATES of America ex rel. Sheila EL-AMIN, et al., Plaintiffs/Relators, v. The GEORGE WASHINGTON UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Columbia

533 F.Supp.2d 12

UNITED STATES of America ex rel. Sheila EL-AMIN, et al., Plaintiffs/Relators, v. The GEORGE WASHINGTON UNIVERSITY, Defendant.

Civil Action No. 95-2000 (CKK).

United States District Court, District of Columbia.

February 4, 2008.

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Alan M. Grayson, Victor Aronoff Kubli, Grayson & Kubli P.C, Vienna, VA, for Plaintiffs/Relators.

Thomas B. Smith, Office of the General Counsel, Washington, DC, Jonathan Lee Diesenhaus, William David Nussbaum, Hogan & Hartson; LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

There are a number of evidentiary-related motions presently before the Court that will, when resolved, narrow the parties' focus, as we move towards trial. The Court therefore resolves the following motions: (1) Relators' Motion In Limine [653], (2) Defendant GW's Motion In Limine No. 1: Motion to Limit Relator Testimony to Anesthesia Procedures in Which They Participated [655], (3) Defendant GW's Motion In Limine No. 2: Motion to Preclude Relators from Testifying Regarding GW's Billing Practices [656], (4) Defendant GW's Motion In Limine No, 3: Motion to Preclude Relators from Offering Irrelevant and Prejudicial Evidence [657], (5) Defendant GW's Motion In Limine No. 4: Motion to Preclude Relators from Offering Evidence Regarding the Locke Reports [700], (6) Defendant GW's Motion to Sequester Relator Witnesses During Trial [660], (7) Relators' Motion for Order Setting Trial by Representative Sample [687], and (8) Relators' Motion for Leave to Submit Relators' Filing Pursuant to the Court's March 1, 2007 Bench Order under Seal [705]. The Court will examine each motion in turn, after providing a brief factual summary.

BACKGROUND¹

Plaintiffs, four certified registered nurse anesthetists ("CRNAs") who were formerly employed by the George Washington University Hospital, brought suit on behalf of the United States under the qui tam provision of the False Claims Act ("FCA"). See 31 U.S.C. §§ 3729-3733. The qui tam plaintiffs ("Relators") allege that from 1989 to 1995 George Washington University ("Defendant") bilked the federal treasury out of thousands, if not millions, of dollars by routinely submitting false claims for anesthesia services to Medicare. These claims were false, the Relators allege, because the Defendant sought reimbursement from Medicare under the guise that each anesthesia procedure had been wholly performed by a licensed anesthesiologist, when in fact portions of the procedure had been performed by residents or CRNAs.

Medicare regulations then in effect did not prohibit the Defendant from using residents or CRNAs in rendering anesthesia services; the regulations did, however, provide guidelines establishing the amount of reimbursement the Defendant was entitled to receive for anesthesia procedures rendered, even in part, by a resident or CRNA. At bottom then, this case tests the merits of the Defendant's billing, practices for reimbursement under Medicare; it does not impeach the efficacy of the anesthesiologists' medical care or the Defendant's treatment of Medicare patients.

At trial, it will be incumbent upon the Relators to show, under 31 U.S.C. § 3729(a)(1), that "(1) the defendant submitted a claim to the government, (2) the claim was false, and (3) the defendant knew the claim was false," or alternatively, under section § 3729(a)(2), that "(1) the defendant created a record and used this record to get the government to pay its claim, (2) the record was false, and (3) the defendant knew the record was false." United States ex rel. Harris v. Bernal, 275 F.Supp.2d 1, 6 (D.D.C.2003) (citing United States v. Southland Mgmt. Corp., 288 F.3d 665, 674-75 (5th Cir.2002), aff'd en banc, 326 F.3d 669 (5th Cir.2003)).

To demonstrate the Defendant submitted "false" claims to Medicare, the Relators will attempt to show that the Defendant's anesthesiologists failed to meet the requirements of a billing regulation commonly known as the "seven steps" regulation. See 42 C.F.R. § 405.552. The seven steps regulation required anesthesiologists to perform several specific tasks for each patient to be eligible to receive reimbursement from Medicare at the highest reimbursement level, i.e., reasonable charge. See El-Amin, supra, 2005 WL 3275997, at *6, 2005 U.S. Dist. LEXIS 18886 at *17. Under the seven steps regulation the anesthesiologist was required to:

(i) Perform a pre-anesthetic examination and evaluation;

(ii) Prescribe the anesthesia plan;

(iii) Personally participate in the most "demanding procedures in the anesthesia plan, including induction and emergence (iv) Ensure that any procedures, in the anesthesia plan that he or she does not perform are performed by a qualified individual ...;

(v) Monitor the course of anesthesia administration at frequent intervals;

(vi) Remain physically present and available for immediate diagnosis and treatment of emergencies; and

(vii) Provide indicated [post-anesthesia] care.

See 42 C.F.R. § 405.552(a)(1)(i)-(vii) (1989-95). For each allegedly fraudulent claim, the Relators will attempt to show the attending anesthesiologist failed to satisfy one or more of the seven steps.

DISCUSSION

I Introduction

Although the Court takes this opportunity to resolve the parties' outstanding pretrial motions, and certainly does not foresee a need to revisit these evidentiary issues, the Court nonetheless recognizes that it is not prescient and cannot predict with absolute certainty how events will unfold at trial. This opinion sets forth the Court's analysis based on the current record before the Court and the arguments articulated by the parties in their respective motions. As evidence and witness testimony are presented at trial, however, either party may find it desirable to revisit discrete evidentiary rulings addressed here. The parties are not foreclosed from doing so. A party desiring to revisit an evidentiary ruling should, conspicuously, bring the matter to the Court's attention and be prepared to summarize the Court's original ruling and explain why the original ruling should be modified in light of new evidence or testimony or a change in circumstances. The parties are cautioned that this is not an invitation to recycle old arguments.

A key purpose of motions in limine is to resolve specific evidentiary issues in advance of trial. To this end, each party was obligated to demonstrate why certain categories of evidence should (or should not) be introduced at trial and to direct the Court to specific evidence, by pointing to specific parts of the record, that would favor or disfavor the introduction of that particular category of evidence. The Court expected the Relators to respond to the Defendant's motions in limine with citations to the record linking evidence of the Defendant's, conduct to specific allegedly fraudulent claims, so it could decide whether this evidence would be allowed at trial. As described more fully below, however, the Relators have failed in many instances to provide the Court with the essential link between their arguments and the evidence in the record that would support their arguments.

Too frequently the Relators make bald assertions or generalized arguments without directing the Court to the part of the record that would support their assertions or arguments. In some instances the Relators fail to even controvert the basic arguments raised by the Defendant, essentially conceding the point. For example, while the Relators assert they would like to introduce evidence of the routine practice of the Defendant's anesthesiologists, they do not identify the specific practice that is allegedly routine, provide the Court with any evidence that the anesthesiologists' conduct was habitual or uniform, or controvert the Defendant's argument that the anesthesiologists' conduct varied with each patient and procedure, and was therefore not routine. In these situations, which are painfully common, the Court has no choice but to conclude the Relators do not support their arguments with specific evidence and references to the record because they cannot — the evidentiary foundation is not there. It is not the Court's responsibility to formulate the Relators' arguments for them or to scour the record for evidence that will support their assertions, and it will not do so here. Nor will the Court delay the resolution of these important evidentiary issues until trial on the slim hope the Relators will be able to cobble together the evidentiary support necessary to make their case. Each party will go to trial with the evidence they have, not with the evidence they wish they had.

II. Evidentiary Standard: Relevance

Because the parties' motions test the basic relevancy of several categories of evidence that may be admitted at trial, a brief summary of the evidentiary standard for relevance is appropriate. Rule 401 of the Federal Rules of Evidence defines relevant evidence as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R.EVID. 401. "The Advisory Committee Notes to [the] Rule ... explain that `relevant evidence' permits the use of evidence that is `admitted as an aid to understanding.'" United States v. Holton, 325 U.S.App. D.C. 360, 116 F.3d 1536, 1542 (D.C.Cir.1997) (quoting Id., advisory committee's note). "The basic concept is that an item of proof is relevant if it tends to prove or disprove any material issue of fact in a case." 2 WEINSTEIN'S FEDERAL EVIDENCE § 401.02. Because the rule is "silent as to what factors the court must consider in determining whether an item of evidence is relevant[,] ... [c]ourts cannot employ a precise, technical, legalistic test for relevance; instead, they must apply logical standards applicable in every...