United States v. Philadelphia AFL, CIO Hospital Association, CIVIL ACTION NO. 98-1916 (E.D. Pa. 4/18/2000)
| Decision Date | 18 April 2000 |
| Docket Number | CIVIL ACTION NO. 98-1916. |
| Parties | UNITED STATES OF AMERICA ex rel. ARNOLD SHOWELL, Plaintiff, v. PHILADELPHIA AFL, CIO HOSPITAL ASSOCIATION a/k/a JFK MEMORIAL HOSPITAL, a/k/a JOHN F. KENNEDY HEALTH CENTER and JAVAD ABDOLLIAHIAN, M.D., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiff Arnold Showell ("Plaintiff") brings this action pursuant to the qui tam provisions of the False Claims Act, 31 U.S.C. § 3729 — 3733 ("FCA"), in connection with the Defendants' Medicare billings for the treatment of Plaintiff's mother, Frances Ellis ("Ms. Ellis"), now deceased. Presently before this Court is Plaintiff's Motion for Summary Judgment, as well as Cross-Motions for Summary Judgment filed by: (1) Philadelphia AFL, CIO Hospital Association, and John F. Kennedy Memorial Hospital (collectively "J.F.K."), and (2) Javad Abdolliahian, M.D. ("Dr. Abdolliahian")1. For the reasons that follow, Plaintiff's Motion is denied and the Motions of J.F.K. and Dr. Abdolliahian are granted.
"Summary judgment is appropriate when, after considering the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact remains in dispute and `the moving party is entitled to judgment as a matter of law.'" Hines v. Consolidated Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991) (citations omitted). "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party carries the initial burden of demonstrating the absence of any genuine issues of material fact.2 Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). Once the moving party has produced evidence in support of summary judgment, the nonmovant must go beyond the allegations set forth in its pleadings and counter with evidence that demonstrates there is a genuine issue of fact for trial. Id. at 1362-63. Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Unsubstantiated and subjective beliefs and opinions are not competent summary judgment evidence." Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). Further, "when there are cross-motions, each motion must be considered separately, and each side must still establish a lack of genuine issues of material fact and that it is entitled to judgment as a matter of law." Nolen v. Paul Revere Life Ins. Co., 32 F. Supp.2d 211, 213 (E.D.Pa. 1998).
A. FALSE CLAIMS ACT.
The FCA provides for civil and criminal penalties for persons who knowingly submit false claims to the government. United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 738 (3d Cir. 1997). The qui tam3 provisions of the FCA "permit[], in certain circumstances, suits by private parties on behalf of the United States against anyone submitting a false claim to the Government." United States ex rel. Mistick PBT v. Housing Authority of the City of Pittsburgh, 186 F.3d 376, 382 (3d Cir. 1999) (quoting Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 941 (1997)). A private person, known as the relator, with knowledge of fraud being committed against the government may institute litigation, acting as a de facto attorney-general, against the responsible parties. Dunleavy, 123 F.3d at 738. Under the FCA, "a qui tam plaintiff may win anywhere from 10% to 30% of the proceeds of the suit (including civil penalties and trebled damages), as well as reasonable expenses, attorney fees, and costs, depending on such factors as whether the qui tam plaintiff or the government prosecuted the suit and the significance to the suit of the qui tam plaintiff's information."4 United States ex rel. Waris v. Staff Builders, Inc., No.Civ.A. 96-1969, 1999 WL 179745, at *1 (E.D.Pa. Mar. 4, 1999).
In the instant case, Plaintiff's mother, Ms. Ellis, treated with Dr. Abdolliahian at J.F.K. Hospital beginning in 1992 until approximately 1998. In connection with that treatment, Defendants submitted claims for payment to Medicare. Plaintiff does not allege that he was ever present when Ms. Ellis received any treatment from J.F.K. or Dr. Abdolliahian. Moreover, Plaintiff did not know what Ms. Ellis was being treated for, although he assumed she was being treated for high blood pressure. (Showell Dep. at 23.) Plaintiff did not know what treatments were being provided for Ms. Ellis. Id. at 21. Further, Ms. Ellis never complained to Plaintiff that she was dissatisfied with her medical treatment. Id. at 23-26. The only knowledge Plaintiff has of what occurred during Ms. Ellis' treatment at J.F.K. with Dr. Abdolliahian is what he has discerned from Ms. Ellis' medical records, which he obtained through a power of attorney. He asserts that these medical records are inconsistent with Medicare summary notices produced and mailed by Medicare to Ms. Ellis.5
In his fourteen-count, two hundred twenty-five paragraph Amended Complaint, Plaintiff asserts that J.F.K. and Dr. Abdolliahian presented false claims for payment to the United States government, created false records, and delivered services other than those for which they billed, in violation of the FCA.6
The pertinent provisions of section 3729 of the FCA are as follows
(a) Liability for Certain Acts. — Any person who —
(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or member of the Armed Forces of the United States a false or fraudulent claim for payment or approval;
(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government;
* * *
(4) has possession, custody, or control of property or money used, or to be used, by the Government and, intending to defraud the Government or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt;
(b) Knowing and knowingly defined. -For purposes of this section, the terms "knowing" and "knowingly" mean that a person, with respect to information —
(1) has actual knowledge of the information;
(2) acts in deliberate ignorance of the truth or falsity of the information; or
(3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.
31 U.S.C. § 3729 (a)(1),(2),(4); 31 U.S.C. § 3729(b).
The record in this case reveals that Plaintiff has undertaken minimal discovery in this case in his attempt to develop his claims under the above provisions. Moreover, Plaintiff's summary judgment motion does not cite to the record, other than to his Amended Complaint. Rather, in support of his summary judgment motion, and in opposition to those of Defendants, Plaintiff relies predominantly on seven documents, medical records of Ms. Ellis, which he has attached to the Amended Complaint.7 Although he did not retain an expert to interpret these documents, he insists that they are false records in violation of the FCA, as he asserts that they are inconsistent with the various Medicare summary notices which were mailed to Ms. Ellis.
Document 1 is a J.F.K. Progress Note for Ms. Ellis with one entry made on September 9, 1997, and two entries made on September 23, 1997. The September 9, 1997 entry is blank, except for the date. The September 23, 1997 entries indicate that Ms. Ellis was given influenza vaccine and a prescription for Vasotec by, Plaintiff assumes, Linda Baylis, a nurse. (Showell Dep. at 54.) Plaintiff does not contend that his mother was not given an influenza vaccine on that date. Id. Moreover, Plaintiff contends that Ms. Baylis' only motive was to record that Ms. Ellis was given an influenza vaccine. Id. However, Plaintiff does contend that Document 1 is a false record because J.F.K. and Dr. Abdolliahian "submitted claims for hospital services and doctor services, office services, to Medicare that are not recorded" on the document. Id. at 55-56. Specifically, Plaintiff claims that although the document reflects that a prescription for Vasotec was administered on October 23, 1997, Plaintiff has other records, ostensibly the Medicare summary notices, which indicate that the prescription was given on October 17, 1997. Id. at 58. Further, Plaintiff claims that Dr. Abdolliahian submitted a claim for this service to Medicare on October 24, 1997. Id. at 57. Therefore, Plaintiff claims the document is a false record because the date is inaccurate.
Document 2 is a J.F.K. Progress Note for Ms. Ellis with the first entry dated November 20, 1997 which indicates that Ms. Ellis was given a prescription for Procardia on February 19, 1998. Id. at 63. Plaintiff asserts that the document is a false record because Dr. Abdolliahian wrote a prescription for Procardia for Ms. Ellis one week earlier, on February 12, 1998. Plaintiff claims that Dr. Abdolliahian submitted a claim for providing Procardia to Medicare on February 19, 1998. Id. Therefore, Plaintiff claims the record is false because it should have reflected the February 12, 1998 date, and that it was made to "support the claim that Dr. Abdolliahian submitted on 2/19/98." Id. He further asserts that the February 19, 1998 visit was "an excessive claim" because Dr. Abdolliahian "saw [Ms. Ellis] on February the 12th, 1998," and that he was basing that assertion on "a layman's opinion, going by the medical records." Id. at 180.
Document 3 is a J.F.K. Progress Note for Ms....
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