Florida Pain Medicine Clinic and its Owners Agree to Settle Qui Tam Case Involving Allegedly Medically Unnecessary Nerve Conduction Velocity Tests

Nerve conduction studies (NCS) or nerve conduction velocity tests (NCV) have been a source of Medicare audits in California and Florida for years. Medical necessity is the usual basis for the audits but in this case, a billing employee brought a whistleblower lawsuit and the U.S. intervened.   

In a recent case, a civil qui tam case was settled on April 13, 2016 involving the billing of NCS procedures to Medicare and alleged violations of the False Claims Act. The case is United States ex rel. Gomez v. Florida Pain Medicine Associates, Inc., et al., Case No. 13-80856 CIV (S.D. Fla.).  

The allegations in the case were originally brought by Rosa Gomez under the qui tam, or whistleblower provisions of the False Claims Act. She sued Florida Pain Medicine Associates, Inc. (Florida Pain Medicine) and its owners, Drs. Bart Gatz, Alexis Renta, and Albert Rodriguez. Ms. Gomez had worked in Florida Pain Medicine’s billing department. The United States intervened in this case and took over primary responsibility for litigation. 

Ms. Gomez (and then the United States) alleged that patient records indicated that a substantial percentage of the NCSs that were performed at Florida Pain Medicine were medically unnecessary. It was alleged that the NCSs were often administered without an accompanying electromyography (EMG) test, thereby substantially decreasing the diagnostic value of the procedure. It was contended that this was especially true where the NCS was the sole basis for performing an epidural steroid injection. Florida Pain Medicine denied these allegations.

Ultimately, like many qui tam cases, the cases settled without any admission of liability. Florida Pain Medicine and its owners agreed to pay $1.1 million to resolve allegations that they violated the False Claims Act by billing Medicare for medically unnecessary nerve conduction studies (NCS).  The claims settled by the lawsuit are allegations only and there has been no determination of liability. Ms. Gomez will receive $242,000 as her share of the proceeds.

Attorney Note: One of the most important reasons for self-disclosure and compliance plans (including exit interviews) is to avoid the whistleblower lawsuits. In many cases, former employees are rushing to qui tam plaintiff attorneys to find grounds for filing cases. Although disclosure can seem painful and not necessary, the interest in employees seeking a payday in qui tam cases, even where the facts are weak, is an expensive and time consuming process. 

Posted by Tracy Green, Esq.
Email: tgreen@greenassoc.com
Contact: 213-233-2260

Tracy Green Interviewed About "Blood-Testing Startup Theranos, Inc. Is Trading Blows With the Wall Street Journal"

Legal Broadcast Network recently interviewed Los Angeles attorney Tracy Green, and expert in health care regulatory issues, on the possible outcomes of the dispute between Theranos, a $9 billion valued private biotech company started by Elizabeth Holmes, and The Wall Street Journal.

Theranos is offering a new technology solution to an old problem.  In October, the Wall Street Journal published a report alleging that Theranos’s claims about its transformative diagnostic technology, including needle-free blood tests that yield faster results than industry standard tests, do not hold up. Theranos fired back with a denial, offering a rebuttal to statements in the article and suggesting that the reporter, John Carreyrou, had been trying to “take down” Theranos.

As to the possibility of a libel action against the Wall Street Journal, Green points out that “libel cases are hard to win.” Green is involved in a case involving reporting by John Carreyrou, and she says that he is meticulous in detailing what he does. Green says that an FDA report released this week will affect any decision to sue. The FDA report is a public record, so it would be important in any issue as to the truth of what the Journal printed.

Green also notes that Carreyrou apparently did a good job of cultivating sources—employees and former employees of Theranos. Whether Carreyrou acted in good faith and checked his facts would also be important. Green says that Theranos has been known to be “incredibly secretive.” The company worked in hidden buildings with no indication of what was going on there. Getting information from insiders will be an important consideration, especially if this information tracks with what the FDA reported.

Posted by Green and Associates

Office: 213-233-2260

California Pain Clinic & Physician Settle Federal Qui Tam Case For Allegedly Upcoding Medicare, Medi-Cal and Tricare – Case Filed by Former Biller Took 6 Years to Resolve

On November 19, 2014, a federal qui tam lawsuit was settled in Los Angeles by the U.S. Attorney’s Office civil division and physician Dr. Narinder S. Grewal and his pain clinic, the Santa Clarita Surgery Center for Advanced Pain Management.  Dr. Grewal agreed that he and the clinic would pay $1,087,176.09 to the United States for Medicare and Tricare billing and $112,823.91 to the State of California for Medi-Cal billing.

This is not a criminal case only civil. As a qui tam attorney, one common driving force that parties often settle these cases, however, is to make sure that the U.S. Attorney’s Office does not use the discovery process to build a criminal health care fraud case.

The background is as follows. On April 16, 2008, a person (Chandana Basu) who did  billing and collection for Dr. Grewal and his clinic (who in qui tam cases gets called a “whistleblower”) had lawyers file a qui tam lawsuit against the doctor and his clinic.  On November 10, 2009, an amended complaint was filed. Ultimately, the key issue was whether or not the United States and/or the State of California would intervene in the case.

Basu’s lawsuit alleged that Grewal and his clinic obtained improper reimbursements from government-run health insurance programs, including Medicare, Medi-Cal and Tricare, a federal health insurance program for military and related military personnel. The lawsuit alleged that Grewal and his clinic submitted fraudulent claims by “upcoding” medical services, which means that he allegedly submitted bills that were not justified by the services that were actually provided.

Negotiations ensued between the U.S. Attorney’s Office, the plaintiff biller’s attorneys and the doctor’s attorneys. A settlement was reached. On November 19, 2014, the U.S. Attorney’s Office filed a notice that it and the State of California would intervene in some allegations in the first amended qui tam complaint and would decline to intervene in other. As part of the settlement, the case was dismissed with prejudice against the doctor and the clinic. The settlement agreement is confidential but the payment amounts have been released. 

The False Claims Acts permit a private person to sue on behalf of the United States and California, and to share in the proceeds of the suit. As a result of the settlement announced today, Basu will receive a total of $204,000. The settlement was announced after United States District Judge Andrew J. Guilford unsealed the lawsuit. The parties asked the court to dismiss the suit.

Attorney Commentary: Billing errors and upcoding can be serious issues. It is critical for practices with a significant amount of governmental billing have a compliance plan in place in order to avoid qui tam cases, audits for recovery and health care fraud allegations. This is risk management and former employees will be the first to file qui tam cases or call in an anonymous complaint to Medi-Cal, Medicare or Tricare.

Posted by Tracy Green, Esq.

Green and Associates

Phone: 213-233-2260

California Court of Appeal Allows Dentist To Sue Writers Of Negative Yelp Review For Libel

A common question we receive from our professional clients such as doctors and health care providers is what they can do when there is a negative review online -- whether it be Google, Yelp or other websites.  

Often common sense applies, contacting the patient or customer, offering to address the issue or solve the problem, posting a response on the website outlining those attempts, and other tactics that will not alienate the readers of these sites.


Suing the Internet host is not an option under the facts of most cases since the federal communications Decency Act immunizes Yelp and other Internet sites from libel lawsuits stemming from user comments. 

A recent case in California upheld dentist Yvonne Wong's right to sue the man who posted a negative review on Yelp for libel and his wife.  The Court held in Wong v. Jing that the lower court properly dismissed claims for intentional and negligent infliction of emotional distress filed by Dr. Wong.

Dr. Wong alleged that she properly advised the couple, prior to filling their son’s cavity in 2006, that she would use a silver amalgam filling containing mercury, and that she examined the child again in 2008 and found more cavities. But after consulting another dentist, she alleged, the couple published “slanderous complaints” on Yelp.com and other websites, false claiming that she did not tell them about the mercury, misdiagnosed the son’s case, and improperly used a general anesthetic. 

Dr. Wong alleged the couple knew those claims were false. The Yelp review, a copy of which was attached to the complaint, suggesting that Wong should be avoided “like a disease;” that she worked “really fast” and caused the son to be “light headed for several hours;” that the new dentist discovered seven cavities; that Wong used laughing gas, “which was the cause of my son’s dizziness” and “harms a kid’s nerve system” and that she used “silver amalgams” containing a trace of mercury. 

As for Dr. Wong's defamation claim, the Court held that the dentist showed a prima facie case based on her sworn statements that she disclosed that the amalgam contained mercury, that she properly diagnosed the case, and that she did not use a general anesthetic or otherwise engage in unprofessional conduct, all contrary to Jing’s assertions. 

With respect to the emotional distress claims, however, the Court of Appeal upheld their dismissal. The Opinion stated that Jing’s statements, he said, fall short of the “high bar” that California sets on such claims, and could not have caused Dr. Wong to suffer “severe, lasting, or enduring” mental harm. 

Attorney Notes:  What happens now to this case? It gets sent back to the Santa Clara Superior Court and discovery and litigation proceeds. Litigation is one tool that a professional or business owner can use with respect to reviews that rise to the level of libel. However, filing a lawsuit and going through the extensive motion and appeal process which happened in this case can be costly.

We have guided clients through this process since licensed professionals need to act cautiously since disputes with patients or clients can lead to Board complaints. Anything that is written or spoken to a client or patient needs to be viewed through that lens. An analysis of the cost benefit analysis is also helpful. The Internet has turned everyone into a potential instant critic.

We refer some of our clients to "reputation management" consultants who understand the best way to drive negative reviews and encourage our clients to deal intelligently with social media and the Internet. The funds are often best spent there and on marketing rather than on litigation against reviewers. It is very frustrating especially when some of the "reviews" are false by competitors. 

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation or to discuss this post.  

The firm focuses its practice on the representation of licensed professionals (including dentists), individuals and businesses in civil, business, administrative and criminal proceedings. Our website is: http://www.greenassoc.com/