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United States ex rel Tucker v. Nayak

June 15, 2009

THE UNITED STATES OF AMERICA EX REL. PAM TUCKER, PLAINTIFF,
v.
P.D.L NAYAK, M.D., DEFENDANT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on defendant P.D.L. Nayak's motion for summary judgment (Doc. 60). Relator Pam Tucker has responded (Doc. 69), and Nayak has replied to that response (Doc. 70). For the following reasons, the Court will grant the motion.

I. Standard for Summary Judgment

Summary judgment is appropriate where "the pleadings, the discovery and disclosed materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. If the moving party is defending the claim at trial, he need not provide evidence affirmatively negating the plaintiff's claim. It is enough that he point to the absence of evidence to support an essential element of the plaintiff's claim for which she carries the burden of proof at trial Celotex, 477 U.S. at 322-23, 325. Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).

In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). Where the defendant has pointed to a lack of evidence for one of the essential elements of a plaintiff's claim, if the plaintiff fails to provide evidence sufficient to establish that element, there is no genuine issue of material fact. Celotex, 477 U.S. at 322-23.

II. Facts

Viewed in Tucker's favor, the admissible evidence establishes the following facts for the purposes of this motion.

Nayak is a doctor practicing in the Southern District of Illinois at Effingham Urology Associates S.C., a practice he owns. Tucker served as an insurance billing clerk in Nayak's office from January 2001 to January 2006. At some points during Tucker's employment, staff at Nayak's office performed certain medical and technical procedures while he was not in the building. It was likely that Nayak caused his staff to bill Medicare for those procedures, although the procedures were only payable under Medicare if they were performed while Nayak or another doctor from Effingham Urology Associates was in the building. However, beginning sometime in 2001, after Tucker brought the billing issue to Nayak's attention, Nayak would sometimes come in early so he would be in the building when early morning procedures were scheduled, rendering those procedures properly billable to Medicare.

Although Nayak may have billed for some service that were not reimbursable by Medicare, Tucker is unable to point to any evidence of a specific bill submitted to Medicare for a specific procedure performed without the proper supervising physician personnel in the building. Her own recollection is insufficient to establish what time any particular patient was treated, what doctors, if any, were in the building at that particular time and what Medicare claim was filed seeking payment for that patient's procedure. Documentary evidence of a particular false claim is likewise lacking.

On September 5, 2006, Tucker filed a sealed complaint against Nayak alleging numerous violations of the False Claims Act ("FCA"), 31 U.S.C. § 3729, et seq. The United States declined to intervene in this action, and on July 17, 2007, the Court unsealed the complaint. After the Court dismissed Tucker's complaint, she filed an amended complaint, which is now the operative pleading in this case. See Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999). Tucker contends Nayak violated the FCA by presenting unauthorized claims to Medicare and/or making false statements to get those claims paid. Nayak moves for summary judgment on the basis that Tucker cannot point to any particular claim Nayak submitted knowing it was false.

III. Analysis

The FCA imposes liability against any person who:

(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government... 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; [or] (3) ...


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