United States District Court, N.D. Illinois, Eastern Division
UNITED STATES OF AMERICA ex rel. LUAY D.F. AILABOUNI, M.D., STATE OF ILLINOIS ex rel. LUAY D.F. AILABOUNI, M.D., and LUAY D.F. AILABOUNI, M.D., individually, Plaintiffs,
ADVOCATE CHRIST MEDICAL CENTER, et al., Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY UNITED STATES DISTRICT JUDGE
Luay Ailabouni filed this qui tam action under the
False Claims Act (FCA), 31 U.S.C. § 3729, et
seq., and the Illinois False Claims Act (IFCA), 740 ILCS
175/1, et seq., on behalf of the United States and
the State of Illinois. Relator sues Advocate Christ Medical
Center (ACMC); Advocate Medical Group (AMG); and William
Hopkins, M.D. (together, the Advocate Defendants). Relator
also sues Cardiothoracic & Vascular Surgical Associates,
SC (CVSA); Dean Govostis, M.D.; Wade Kang, M.D.; and Sanjeev
Pradhan, M.D. (together, the CVSA Defendants).
alleges that Defendants defrauded Medicare and Medicaid in
various ways through their activities in a teaching hospital.
Relator filed his second amended complaint in December 2017.
. Defendants moved to dismiss that complaint with
prejudice. [97, 99]. For the reasons explained below, this
Court partially grants and partially denies the motions.
Court presumes familiarity with, and incorporates by
reference, its prior opinion dismissing Relator's first
amended complaint . Abbreviations in this opinion have
the same meaning as in the prior opinion. Because
Relator's foundational allegations (about, among other
things, Medicare's relationship with teaching hospitals
and the residency program operating at ACMC) remain unchanged
from his first amended complaint, this opinion does not
include a new background section. Likewise, this opinion does
not repeat in detail the required elements of each statute at
issue. Instead, this Court discusses Relator's new
allegations against each individual defendant within the
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must provide a “short
and plain statement of the claim” showing that the
pleader merits relief, Fed.R.Civ.P. 8(a)(2), so the defendant
has “fair notice” of the claim “and the
grounds upon which it rests, ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). A complaint must also
contain “sufficient factual matter” to state a
facially plausible claim to relief-one that “allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). This plausibility
standard “asks for more than a sheer possibility”
that a defendant acted unlawfully. Williamson v.
Curran, 714 F.3d 432, 436 (7th Cir. 2013). Thus,
“threadbare recitals of the elements of a cause of
action” and mere conclusory statements “do not
suffice.” Limestone Dev. Corp. v. Vill. of
Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
evaluating a complaint under Rule 12(b)(6), this Court
accepts all well-pled allegations as true and draws all
reasonable inferences in the plaintiff's favor.
Iqbal, 556 U.S. at 678. This Court does not,
however, accept a complaint's legal conclusions as true.
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
IFCA claims must meet Rule 9(b)'s heightened pleading
requirements. See United States ex rel. Gross v. AIDS
Research Alliance-Chi., 415 F.3d 601, 604 (7th Cir.
2005). Rule 9(b) demands that claimants alleging fraud
“state with particularity the circumstances
constituting fraud.” Particularity resembles a
reporter's hook: a plaintiff “ordinarily must
describe the who, what, when, where, and how of the fraud-the
first paragraph of any newspaper story.” Pirelli
Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen
Co., 631 F.3d 436, 441-42 (7th Cir. 2011) (internal
quotation marks omitted). Ultimately, a plaintiff must always
inject “precision and some measure of
substantiation” into fraud allegations. United
States ex rel. Presser v. Acacia Mental Health Clinic,
LLC, 836 F.3d 770, 776 (7th Cir. 2016) (internal
quotation marks omitted).
and IFCA each prohibit: (1) knowingly presenting, or causing
to be presented, a false or fraudulent claim to the
government for payment; and (2) knowingly making or using, or
causing to be made or used, a false record or statement
material to a false or fraudulent claim to the government.
See  at 10- 11 (citing 31 U.S.C. § 3729;
740 ILCS 175/3).
alleges violations of both prohibitions. Here, Defendants
argue that Relator's new allegations fail to satisfy Rule
9(b)'s particularity requirements and fail to state
claims under Rule 12(b)(6).
The CVSA Physicians' Improper Exclusion of
● Govostis (as the primary surgeon) and Kang (as the
assistant surgeon) performed an “Endoleak”
surgery on a Medicare recipient at ACMC in December 2010 and
falsely reported that no qualified surgical resident was
available during the procedure even though Relator, then a
fourth-year General Surgery resident, observed the whole
procedure. Relator alleges that he should have assisted
because an Endoleak “is not a particularly complex
operation, ” he previously assisted in more complex
surgeries, and ...