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United States ex rel Walner v. Northshore University Healthsystem

September 18, 2009


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiffs United States of America, ex rel. Lawrence Walner, and Lawrence Walner, individually (collectively "Walner") filed suit against Defendants NorthShore University Health System ("NorthShore"), Dr. Timothy Votapka ("Votapka"), and John Does 1-10 ("John Does") (collectively "Defendants") alleging violations of the False Claims Act ("FCA") (Counts I, II, and III) and common law fraud (Count IV), and seeking injunctive relief (Count V). Defendants move the Court, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss Walner's Complaint for failure to state a claim upon which relief can be granted. For the reasons stated, Defendants' Motion to Dismiss is granted. Counts I, II, III, and V of Walner's Complaint are dismissed without prejudice and Count IV is dismissed with prejudice.


The following facts are taken from the allegations in Walner's Third Amended Complaint, which are accepted as true for purposes of deciding this motion to dismiss. Walner is one of NorthShore's patients and is also a Medicare recipient. Am. Compl ¶ 2.*fn2 NorthShore is a health system affiliated with Northwestern University that operates three hospitals in the Chicago area. Am. Compl. ¶ 9. It receives payment from the United States through the federal Medicare and Medicaid programs. Am. Compl. ¶ 11.

Shortly before undergoing heart surgery for replacement of an aortic valve in January 2004, Walner was informed that a recent angiogram test revealed that he had two 20% blockages in his arteries. Am. Compl.¶ 24. Walner's surgeon told him that he would not ordinarily perform a bypass on such a limited blockage, but because Walner was already undergoing heart surgery his surgeon recommended that the bypasses be performed. Am. Compl. ¶ 25. Walner received a copy of Medicare's payment for the bypasses within several months. Am. Compl. ¶ 30.

When applying for life insurance coverage in 2007, Walner discovered that his medical history included a record of 70% blockages in his arteries. Am. Compl. ¶ 32. Subsequently, Walner sought the advice of another cardiologist. Am. Compl. ¶ 36. After receiving the film of his January 2004 angiogram, the cardiologist informed Walner that his arteries showed a 20% blockage, not a 70% blockage. Am. Compl. ¶ 37. Walner asserts that at the time his surgeon recommended the bypasses be performed, the surgeon expected to be paid through Medicare. Am. Compl. ¶ 26. Because the surgeon knew that Medicare would not deem bypasses on a 20% blockage medically necessary and therefore would not cover payment, the surgeon and hospital representative falsely recorded a 70% blockage. Am. Compl. ¶ 27.

Walner originally filed this action under seal on May 8, 2008, and then filed an amended complaint on July 28, 2008. In accordance with the FCA's qui tam provision, 31 U.S.C. § 3730, the case remained under seal to give the U.S. Attorney's Office time to decide whether to intervene. Ultimately, the government declined to intervene and Walner proceeded on his own as a relator. See D.E. 8, Notice of Election to Decline Intervention. On October 31, 2008, Walner filed a Second Amended Complaint which the Defendants moved to dismiss. In response to Defendants' motion to dismiss, Walner filed a Third Amended Complaint. Defendants now move the Court to dismiss Walner's Third Amended Complaint pursuant Fed. R. Civ. P. 12(b)(6).


When considering a motion to dismiss, a court must accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). To state a claim upon which relief can be granted, a complaint must contain a "short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A plaintiff need not allege all facts involved in the claim. See Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994). However, in order to survive a motion to dismiss for failure to state a claim, the claim must be supported by facts that, if taken as true, at least plausibly suggest that the plaintiff is entitled to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 1929 (2007). Such a set of facts must "raise a reasonable expectation that discovery will reveal evidence" of illegality. Id. at 1965.


I. FCA Claims (Counts I, II, and III)

Defendants move this Court to dismiss Walner's FCA claims because he has failed to plead them with the particularity required by Fed. R. Civ. P. 9(b). The FCA is an anti-fraud statute and claims brought pursuant to the FCA are subject to the heightened pleading requirements of Rule 9(b). See United States ex rel. Gross v. AIDS Research Alliance-Chicago, 415 F.3d 601, 604 (7th Cir. 2005). Rule 9(b) requires that "[i]n all averments of fraud..., the circumstances constituting fraud... shall be stated with particularity." Fed. R. Civ. P. 9(b). Rule 9(b)'s heightened pleading standard requires a plaintiff to do more than the usual investigation before filing his complaint. See Ackerman v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999). Rule 9(b) "requires the plaintiff to conduct a precomplaint investigation in sufficient depth to assure that the charge of fraud is responsive and supported...." Id. A complaint for fraud must specify the "who, what, when, where and how" of the alleged fraud. See United States ex rel Lusby v. Rolls-Royce Corp., No. 08-3593, 2009 WL 1855179 at *4 (7th Cir. June 30, 2009) (citing DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990)). Simple conclusory allegations of fraud do not suffice. See Gross, 415 F.3d at 604-05. The FCA imposes civil liability for a series of actions under § 3729(a).*fn3 Here, the three applicable sections are § 3729(a)(3) (Count I), § 3729(a)(1) (Count II), and § 3729(a)(1)(B) (Count III). Under § 3729(a)(3), civil liability is imposed on any person who conspires to defraud the government by getting a false or fraudulent claim allowed or paid. See 31 U.S.C. § 3729(a)(3). To state a claim under Section 3729(a)(3), Walner must allege two elements: 1) that the Defendants had an agreement, combination, or conspiracy to defraud the government by getting a false or fraudulent claim allowed or paid; and 2) that the Defendants did so for the purpose of obtaining or aiding to obtain payment from the government or approval of a claim against the government. See 31 U.S.C. 3729(a)(3); United States ex rel. Marcus v. Hess, 317 U.S. 537, 544-45 (1943); United States v. Rogan, 459 F. Supp. 2d 692, 718 (N.D. Ill. 2006). Under § 3729(a)(1), civil liability is imposed on any person who knowingly presents a false or fraudulent claim to the government for payment or approval. See 31 U.S.C. § 3729(a)(1). To state a claim under this section, Walner must allege three elements: 1) a false or fraudulent claim; 2) was presented, or caused to be presented, by the Defendants to the United States for payment or approval; 3) with the knowledge that the claim was false. See United States ex rel. Fowler v. Caremark RX, L.L.C., 496 F.3d 730, 740-41 (7th Cir. 2007), overruled on other grounds by Glaser v. Wound Care Consultants, Inc., No. 07-4036, 2009 WL 1885500 (7th Cir. July 02, 2009). Under § 3729(a)(1)(B), civil liability is imposed on any person who knowingly makes, uses, or causes to be made or used, a false record or statement material to the false or fraudulent claim. See 31 U.S.C.A. § 3729(a)(1)(B). To state a claim under this section, Walner must allege that: 1) the Defendants made a statement in order to receive payment from the government; 2) the statement was false, and 3) the Defendants knew it was false.*fn4 See Fowler, 496 F.3d at 741.

Here, Walner alleges that the Defendants violated the FCA by submitting false records to Medicare for payment. In support of his allegations, Walner alleges that his surgeon informed him that he had two 20% blockages but that his medical records document 70% blockages. Am. Compl. ¶ 27. Walner asserts that his surgeon knew that NorthShore had to comply with Medicare regulations and Medicare does not consider bypasses for 20% blockages as medically necessary. Am. Compl. ¶¶ 17, 27. Therefore, to get Medicare to pay for the bypasses, which it did, Walner alleges that the Defendants falsely recorded 70% blockages. Am. Compl. ¶ 27. Typically, FCA claims fail because the plaintiff can only point to a fraudulent scheme and are unable to present evidence at an individualized transactional level. See Fowler, 496 F.3d at 741-42; United States ex rel. Crews v. NCS Healthcare of Illinois, Inc., 460 F.3d 853, 856-57 (7th Cir. 2006). While that is not the case here because Walner points to himself as the individualized transaction, Walner's FCA claims still fail to state a claim under Rule 9(b) because his Third Amended Complaint fails to plead with particularity the "who, what, where, when, and how" of the circumstances surrounding the alleged fraud.

In his Third Amended Complaint, Walner identifies NorthShore and Votapka, as well as an angiogram physician, a hospital representative, and a hospital agent as being involved in the alleged fraud. Am. Compl. ¶¶ 9, 10, 27, 38. Walner, however, fails to differentiate among Northshore and the other individuals mentioned and fails to plead each Defendants role in the fraud, including but not limited to who submitted the false claim. See Vicom, Inc. v. Harbridge Merchant Servs., 20 F.3d 771, 778 (7th Cir. 1994) ("[T]he complaint should inform each defendant of the nature of his alleged participation in the fraud.") (internal citations omitted); Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990) (affirming dismissal of complaint because it "lump[ed] all the defendants together and [did] not specify who was involved in what activity."); Suburban Buick, Inc. v. Gargo, No. 08 C 0370, 2009 WL 1543709 at *4 (N.D. Ill. May 29, 2009) (Gettleman, J.)("The complaint should not lump multiple defendants together, but should inform each defendant of the specific fraudulent acts that constitute the basis of the action against the particular defendant.") (internal quotations and citations omitted). Walner's Third Amended Complaint also fails to describe what is included in the allegedly false claim that was submitted to Medicare.*fn5 Walner asserts that he does not have access to the Medicare claim and therefore cannot provide the Court with this information. But, at the very least, Walner does have a record of the Medicare payment because it was sent to him. Am. Compl. ΒΆ 30. Therefore, Walner should at least be able to plead, with particularity, the facts contained in Medicare's record of payment. Walner's Third Amended Complaint also fails to specify where and when the allegedly false claim was made. Walner himself received the two bypasses, and yet he fails to plead the specific date of the surgery and even the specific NorthShore hospital at which it was performed. Walner's Third Amended Comlaint does not even identify the dates included in record of Medicare payment that Walner admits he received. Finally, Walner's Amended Complaint fails to plead with particularity the "how" of the fraud. Walner alleges that the Defendants participated in a conspiracy to present false statements and claims to Medicare in order to receive payment. But again, Walner fails to plead who agreed with whom, how they agreed, how they decided to file a false claim, who made the alleged misrepresentation, who filed the allegedly false claim, the method by which it was filed, and how much the payment was for. See e.g., DiLeo, 901 F.2d at 627 (stating that Rule 9(b) "particularity" means "the who, what, when, where, and how: the first paragraph of any newspaper story"); see also United States ex rel. Grant v. Thorek Hosp., No. 04 C 8034, 2007 WL 1883454 at *3 (N.D. Ill. April 25, 2008) (Andersen, J.) (dismissing qui tam claim under FCA where complaint did not include any details regarding: "the date on which any claim was submitted... the content of any claim; the identification ...

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