While not much consolation for in-house counsel at hospitals and other health care providers, on April 26, 2010, the United States District Court for the Southern District of Florida dismissed a lawsuit against former Tenet Healthcare Corporation (Tenet) in-house lawyer Christi Sulzbach, on the basis that the claims were barred by the statute of limitations. Tenet was under a CIA with the OIG as a result of a previous settlement with the government in a case brought against Tenet predecessor, National Medical Enterprises, Inc. (NME), involving health care fraud allegations. Ms. Sulzbach had signed the CIA on NME’s behalf. The CIA required Ms. Sulzbach to sign annual sworn declarations assuring the government that NME (which later became Tenet following a merger) was complying with federal requirements. According to the government’s complaint against Ms. Sulzbach, her sworn declarations violated the FCA since she failed to report that Tenet had been violating the FCA by billing Medicare for improper referrals. While not getting to the merits of the case, the court found that the allegations upon which the government’s case against Ms. Sulzbach was based were time-barred, In rejecting the government’s arguments, the court noted that “[t]he limitations clock does not re-start every time a plaintiff learns of a new fact or ‘better evidence’ that supports its claims.”
This lawsuit has put fear in the hearts of in-house counsel and others who sign certifications on behalf of their organizations. This dismissal does nothing to allay those fears since the dismissal was on a technicality and not the merits. In-house counsel and managers who attest to the legality of their organization’s actions, whether in CIA submissions or other submissions to the government would be well-advised to do their own due diligence and assure themselves that they are comfortable with what they are attesting to.
Don’t expect the settlements and criminal cases to slow down just because it’s almost summer.