United States ex rel. Wollman v. Mass. Gen. Hosp., Inc.

• Decision Date: 29 July 2020
• Docket Number: CIVIL ACTION NO. 15-11890-ADB
• Citation: 475 F.Supp.3d 45
• Parties: UNITED STATES of America and the Commonwealth of Massachusetts, EX REL. Lisa WOLLMAN, M.D., Plaintiffs v. MASSACHUSETTS GENERAL HOSPITAL, INC., the Massachusetts General Hospital's Physician's Organization, and Partners Healthcare System, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

475 F.Supp.3d 45

UNITED STATES of America and the Commonwealth of Massachusetts, EX REL. Lisa WOLLMAN, M.D., Plaintiffs

v.MASSACHUSETTS GENERAL HOSPITAL, INC., the Massachusetts General Hospital's Physician's Organization, and Partners Healthcare System, Inc., Defendants.

CIVIL ACTION NO. 15-11890-ADB

United States District Court, D. Massachusetts.

Filed July 29, 2020

Abraham R. George, US Attorney's Office, Boston, MA, for Plaintiff United States of America.

Amy Crafts, Office of the Attorney General, Boston, MA, for Plaintiff Commonwealth of Massachusetts.

Elizabeth H. Shofner, Pro Hac Vice, Reuben A. Guttman, Pro Hac Vice, Traci L. Buschner, Pro Hac Vice, Guttman, Buschner & Brooks, PLLC, Washington, DC, Justin S. Brooks, Pro Hac Vice, Guttman, Buschner & Brooks, PLLC, Philadelphia, PA, Laura R. Studen, Neerja Sharma, Burns & Levinson LLP, Boston, MA, for Plaintiff Lisa Wollman, M.D.

Martin F. Murphy, Aaron F. Lang, Julia G. Amrhein, Kristopher N. Austin, Madeleine K. Rodriguez, Foley Hoag LLP, Boston, MA, for Defendants.

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF/RELATOR'S MOTION TO COMPEL THE PRODUCTION OF THE STERN REPORT AND RELATED DOCUMENTS AND ON DEFENDANTS’ MOTIONS TO QUASH SUPBOENAS TO THIRD-PARTIES

DEIN, U.S.M.J.

I. INTRODUCTION

Plaintiff/Relator Lisa Wollman, M.D., a former anesthesiologist at Massachusetts General Hospital ("MGH") has brought a qui tam action under the False Claims Act ("FCA"), 31 U.S.C. §§ 3729 et seq. , and the Massachusetts False Claims Act ("MFCA"), Mass. Gen. Laws ch. 12, § 5B against MGH, Massachusetts General Physicians Organization ("MGPO"), and Partners Healthcare System ("Partners") (collectively the "Defendants" or "MGH"). Dr. Wollman alleges that the Defendants fraudulently billed Medicare and Medicaid for overlapping and concurrent surgeries that required patients to be under anesthesia at the same time. See Memorandum and Order on Defendants’ Motion to Dismiss (Docket No. 102) ("MTD Order")¹ at 3. Specifically, Dr. Wollman alleges that the "Defendants’ widespread use of Concurrent Surgery (1) endangered patients by placing them under ‘unnecessarily prolonged administrations of anesthesia

’ that are not ‘reasonable and necessary’ and thus not reimbursable; (2) violated informed consent regulations by using a ‘relatively non-descript informed consent form and routinely t(aking) other affirmative steps to conceal the practice of concurrent and overlapping surgeries from patients that resulted in a lack of informed consent;’ (3) violated record-keeping regulations because ‘surgeons falsified or failed to keep accurate records to conceal their practices;’ and (4) caused government payors to pay for work that teaching physicians did not do, either because they were not ‘immediately available’, did not designate qualified backup surgeons, were not present for ‘key or critical’ parts of surgery, or never appeared in the hospital room at all." Pl. Mem. (Docket No. 122-1) at 1.²

It is undisputed that by no later than 2010, Dr. Dennis Burke, an orthopedic surgeon at MGH, challenged the practice of overlapping surgeries at MGH, and the practice apparently was the subject of considerable discussion. In 2011, the Defendants retained the services of Donald Stern, Esq., a former U.S. Attorney, and his law firm, Cooley, LLP, to conduct an investigation into Dr. Burke's complaints.³

The purpose and scope of the investigation are in dispute, as is the identity of the person/entity who initiated the retention of outside counsel to conduct an investigation. In any event, Attorney Stern issued a report on December 21, 2011 relating to the practice of concurrent and overlapping surgeries (the "Stern Report" or "Report"). The Plaintiff/Relator has moved to compel the production of the Stern Report and related documents. (Docket No. 120). The Defendants have refused to produce any of the material, claiming that it is protected by the attorney-client and work product privileges.

This matter is presently before the court on "Plaintiff-Relator's Motion to Compel Production of Documents" (Docket No. 120) whereby the Plaintiff/Relator is seeking the production of the Stern Report, drafts, and other supporting documents. Dr. Wollman contends that Attorney Stern was hired to conduct a factual investigation, and not to provide legal advice, so the Stern Report is not privileged. Moreover, the Plaintiff/Relator contends that any privilege that existed was waived when the Defendants provided a copy of the Stern Report to Rasky Baerlein Strategic Communications, Inc. ("Rasky"), a public relations firm, to help respond to an investigation into the practice of concurrent and overlapping surgeries by the Boston Globe Spotlight Team in 2015, and by sending a copy of the Stern Report to MGH's Chairman of the Board at her email address at Simmons University ("Simmons"), where it was found by counsel for the University when gathering documents to respond to a subpoena. The Plaintiff/Relator has sought the Stern Report and related documents from Simmons and Rasky as well. Consequently, this matter is also before this court on the Defendants’ "Motion to Quash Subpoena to Simmons University" (Docket No. 133) and the Defendants’ "Motion to Quash Subpoena to Rasky Partners, Inc." (Docket No. 134).

By agreement, the court was provided with a copy of the Stern Report for an in camera review. In addition, the court noted that references were made in defense counsel's affidavit and the Defendants’ Opposition to "employee interview memoranda created by Attorney Stern and/or members of his law firm[.]" See Murphy Aff. (Defs. Ex. 9) at ¶ 2; Defs. Opp'n at 6. The court requested and received these documents.

After careful consideration of the extensive written record and arguments of counsel, this court holds that the work-product doctrine has no application here. The question whether the Stern Report and related documents are protected by the attorney-client privilege is a much closer question. Nevertheless, this court's review of the entire record, including the summaries of the employee interviews, has convinced the court that the retention of Attorney Stern and his law firm was for the purpose of providing the Defendants with legal advice. Therefore, the Report and related documents are protected by the attorney-client privilege. However, this court further concludes that the Defendants waived any attorney-client privilege that may have existed by producing the Stern Report to Rasky, but not to Simmons. Therefore, the Stern Report and any related documents provided to Rasky, as well as communications with Rasky regarding the same, shall be produced to Dr. Wollman. Such documents may be produced subject to a protective order.

II. SCOPE OF THE RECORD

As an initial matter, this court needs to address the scope of the record to be considered. At oral argument on the motion to compel held on April 7, 2020, this court asked whether there was evidence regarding whether Attorney Stern and his team had met with MGH's counsel or others apart from delivering the Stern Report. The question was asked in the context of trying to determine whether Attorney Stern had been hired to provide legal advice. Post-Stern Report communications between Attorney Stern and the Defendants had not been addressed in the papers. On April 17, 2020, the Defendants filed a motion to supplement their opposition to the Relator's motion to compel to provide excerpts from billing entries made by Attorney Stern and his team before and after the date of Attorney Stern's transmittal of the Report to the Defendants. Mot. to Suppl. the R. of the Hr'g Conducted on Apr. 7, 2020 (Docket No. 160). The Defendants proposed submitted such billing records to the court for an in camera review. Id. at 2. The Defendants represented that there had been discussions with the Plaintiff/Relator about providing the time sheets if their production was not considered the waiver of any privilege, but the discussions were not successful. Id. This court summarily allowed the motion without giving the Plaintiff/Relator an opportunity to respond. (Docket No. 162).

Dr. Wollman promptly filed a "Motion for Reconsideration of Order Granting Defendants’ Motion to Supplement the Record (Dkt. Nos. 160, 162)" (Docket No. 164) objecting to the court's consideration of the time sheets. The Plaintiff/Relator objected to the Defendants providing only selective entries, and to their failure to produce the documents earlier, as well as to their production of materials to the court for an in camera inspection without making any showing as to why the material should be considered by the court. See id. at 2-3. The Plaintiff/Relator further argued that she would be prejudiced if not given the opportunity to review the records and to address their relevance, or lack thereof. Id. The Defendants opposed the Motion for Reconsideration and argued that they were prepared to produce the time sheet excerpts to the Plaintiff/Relator if she would agree that the production does not constitute a waiver of any privilege that may exist. Defs. Opp'n to Mo. for Recons. (Docket No. 165) at 2. The Plaintiff/Relator filed a Reply, continuing to argue that the court should not consider the "cherry picked" entries which were not produced or mentioned in a privilege log before. Reply in Support of Mo. for Recons. (Docket No. 168) at 2.

After due consideration, the Motion for Reconsideration (Docket No. 164) is ALLOWED and the court will not consider any billing entries. The court has determined that it would be inappropriate to allow the Defendants to argue that billing entries support their contention that Attorney Stern was hired to provide legal advice without allowing the Plaintiff/Relator the opportunity to examine the records and obtain discovery about their significance.

As noted above, the court requested copies of the employee interview statements prepared by Attorney Stern and his team, and provided to the...