Northern District of Illinois Federal Judge Ruben Castillo dismissed the whistle-blower lawsuit brought by Robert S. Goldberg, M.D. against Rush University Medical Center, Midwest Orthopaedics at Rush, LLC and other named orthopedic surgeons under the provisions of the False Claims Act, 31 U.S.C. §3727 et seq. The lawsuit,Robert S. Goldberg, M.D. and June Beecham v. Rush University Medical Center, et al., 04-CV-04584, was brought in the federal court by Dr. Goldberg claiming that Rush University Medical Center, along with the orthopedic surgeons and their physicians group, had been overbilling Medicare.
Chicago medical malpractice attorney Robert Kreisman was interviewed by The Chicago Tribune’s Melissa Harris in an attempt to shed some light on the judge’s decision in Goldberg. While Illinois lawsuits involving doctors and hospitals typically are regarding medical negligence that has occurred, in the case of Goldberg, the Illinois lawsuit involved accusations made by one of Rush’s orthopedic surgeons of fraudulent activities committed against the government. These types of case, where a plaintiff brings forth an action because he or she believes that the government has been defrauded, are called whistleblower cases.
The fraud at issue in Goldberg was that a group of orthopedic surgeons at Rush University Medical Center were violating Medicare billing requirements when they overbooked surgeries and through their heavy reliance on residents to perform parts or all of the surgeries. Rush is a teaching hospital and is compensated for training its residents, not for allowing its residents to perform unsupervised surgical procedures.
The defendants in Goldberg brought a motion to dismiss the whistleblower lawsuit, arguing that all claims of fraud should be dismissed because similar claims had already been made throughout the medical industry and therefore the government should have already been forewarned that this sort of Medicare fraud was occurring. In his opinion which dismissed the Goldberg lawsuit, Judge Castillo wrote that the purpose of qui tam litigation is to encourage private citizens to come forward with information regarding fraudulent activity, citing United States ex rel. Feingold v. AdminaStar Fed., Inc., 324 F.3d 492 (7th Cir. 2003).
A few years before Goldberg was filed, Physicians at Teaching Hospitals (PATH) performed an audit of hospitals’ billing practices. The PATH audit resulted in several settlements with hospitals and doctors who had been engaged in fraudulent billing of Medicare. Judge Castillo pointed to this PATH initiative as satisfying the “public discourse” requirement as it had already exposed critical elements of the billing fraud and put the government on notice.
Therefore, Judge Castillo found that there had already been a public disclosure, and that the government was “already in a position to vindicate society’s interests, [so] a qui tam action would serve no purpose.”
Judge Castillo did not rule on the validity of the claims made in the Goldberg lawsuit and whether any fraudulent activity took place. Rather, the court’s job in this instance was to determine whether the three conditions for a whistleblower case had been met. Since the court held that they had not been met, the case was dismissed.
Melissa Harris. “Judge tosses lawsuit against Rush orthopedic doctors: Whistle-blower route rejected because claims too similar to previously uncovered fraud at teaching hospitals.” The Chicago Tribune. January 13, 2011.
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