False Claims Complaint Dismissed Against Zuckerman Spaeder Client University of Pittsburgh Medical Center
A federal judge has dismissed a whistleblower complaint that alleged False Claims Act (FCA) violations by the University of Pittsburgh Medical Center (UPMC) and University of Pittsburgh Physicians (UPP). Zuckerman Spaeder attorneys Jack E. Fernandez, Marcos E. Hasbun, and Sara Alpert Lawson represented the defendants in this qui tam action before the U.S. District Court for the Western District of Pennsylvania.
The whistleblower’s complaint, originally filed in September 2019, alleged that certain surgeons improperly delegated responsibility for obtaining patient consent to other healthcare practitioners prior to surgical procedures, and then certified that they had personally obtained the patients’ consent when seeking reimbursement from government payors. This, the whistleblower argued, violated the FCA.
In its defense of the hospital, Zuckerman Spaeder attorneys argued that, even if the allegations were true, which UPMC categorically denied, the complaint had failed to identify any regulation prohibiting a surgeon from delegating the informed consent process to other practitioners. Further, even if such a regulation existed, they argued, the relevant certifications made no representation about the consent process itself, and therefore, their submission to the government could not have constituted a false statement.
Zuckerman Spaeder’s arguments prevailed, and on May 14th, U.S. District Court Judge Christy Criswell Wiegand dismissed the complaint, ruling that regardless of whether the allegations were true, the whistleblower complaint failed to adequately plead that the federal government would have refused to pay for certain surgeries, even if UPMC and UPP physicians had been delegating the task of obtaining patient informed consent to other practitioners. In explaining her decision, Judge Wiegand said there is no Medicare provision that “defines or prescribes what it means for an informed consent form to be ‘properly executed’” and that the complaint “fails to allege that UPMC and UPP’s patients were not provided with important information about their care.”
The dismissal order provided the whistleblower leave to file an amended complaint, on or before May 28th, but the whistleblower failed to do so. On June 2, Judge Wiegand dismissed the claims against UPMC and UPP with prejudice.
The case is United States of America ex rel. Diana Zaldonis v. University of Pittsburgh Medical Center, University of Pittsburgh Physicians, University of Pittsburgh of the Commonwealth System of Higher Education, 2:19-CV-01220.