On July 9th a federal appeals court ruled that medical judgment is not a valid defense to a qui tam False Claims Act case. This ruling is a step forward for Medicare and Medicaid qui tam relators because it cuts into a previously popular defense against False Claims Act whistleblowers by disallowing the unsupported belief of a physician that an unnecessary medical procedure can be legally justified purely based on “medical judgment” that lacked scientific and factual support. In this case, United States ex rel. Polukoff v. St. Mark’s Hosp., one doctor, Gerald Polukoff, brought a qui tam claim against another doctor for performing unnecessary heart surgeries. Now multiple medical agencies are taking action and cracking down on the doctor’s fraudulent billing thanks to Dr. Polukoff whistleblowing. The facts of the case are such that heart surgery meant for chronic stroke relief was being performed as a treatment for migraine headaches when there was not medical basis for the claim.
This blatant fraud was easily hidden by the doctor certifying that these procedures were necessary based on his “medical judgment,” when “[Dr.] Sorensen fully understands, but rejects, the standard of care for PFO/ASD closures set forth in the [AHA/ASA] Guidelines.”
This decision from the U.S. Court of Appeals for the Tenth Circuit overturned a district court decision, which found that medical judgment could not be false or fraudulent under the False Claims Act. With this new ruling, a procedure can only be “reasonable and necessary” if it meets the government’s definition of reasonable and necessary found in the Medicare Program Integrity Manual; thereby rendering a doctor’s certification (Medical Judgment) that any procedure was “reasonable and necessary,” standing alone, is no longer a sufficient basis to escape False Claims Act liability.
With this case relators in Medicare and Medicaid qui tam cases have a new and powerful tool to deflate a defense that allowed medical providers to cover up fraud based on their own subjectively pronounced judgment. Michael Kohn, who has successfully represented numerous qui tam whistleblower, asserts “This ruling will prove to be a meaningful deterrent to unethical medical providers who delight in performing needless surgery at the taxpayer’s expense.”
If you suspect Medicare or Medicaid billing fraud contact a lawyer about filing an anonymous qui tam whistleblower case, or report it to KKC’s award winning attorneys directly.