A False Claims Act (“FCA”) retaliation claim, 31 U.S.C. 3730(h), filed January 26, 2016 in federal district court in Oregon, provides a perfect example of the type of challenging cases confronting health care employers today.
Pediatrician Robert Dannenhoffer, MD, the former CEO of a joint venture between a hospital and physicians’ group, alleges that he was fired after he reported to the Centers for Medicare & Medicaid Services some $10 million in improper Medicare payments. He seeks reinstatement as CEO, two times his lost compensation with interest, punitive damages, and attorney’s fees and costs.
While it is not known if Dr. Dannenhoffer also has or had a qui tam suit pending under the FCA, his counsel has experience with such cases. That firm’s website has included an announcement of the pendency of the retaliation case.
Moreover, the complaint includes the mixed bag of allegations that characterize so many FCA cases today brought by qui tam relators against health care entities: violations of the physician self-referral prohibitions of the Stark statute, violations of the felony provisions of the anti-kickback statute, and filing claims for goods and services ordered as a result of kickbacks. Further, as part of the recitation of facts, the suit contends there was a knowing retention of Medicare overpayments – another basis for a false claims action.
It goes without saying that health care employers today need both strong and effective compliance programs and sound employment policies and procedures to reduce the risk of having to defend cases like this one. For example, despite the fact that the hospital/physician venture terminated him, Dr. Dannenhoffer alleges that he “had never had a performance review and never had any verbal or written warnings from the board about his management of [the joint venture].” If those allegations are true, Dr. Dannenhoffer’s case is a perfect example of how the failure to have sound policies and procedures can open the door to costly litigation.