The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA, ex
rel. and ANDREA SCHULTZ,
Plaintiffs,
v. Case No: 2:17-cv-237-FtM-29MRM
NAPLES HEART RHYTHM
SPECIALISTS, P.A. and
KENNETH PLUNKITT, Doctor,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss (Doc. #38) filed on September 20, 2019. Relator
filed a Response in Opposition (Doc. #40) on October 4, 2019. For
the reasons set forth below, the motion is denied.
I.
This case arises out of an alleged years-long scheme to
defraud the government healthcare programs Medicare and Medicaid.
Relator Andrea Schultz (Relator) filed a qui tam Complaint (Doc.
#1) on May 4, 2017. The Government declined to intervene in this
case on January 1, 2019 (Doc. #2), and Relator filed an Amended
Complaint (Doc. #21) on July 3, 2019. The Amended Complaint
asserts claims against defendants Naples Heart Rhythm Specialists,
P.A. (NHRS) and Dr. Kenneth Plunkitt (Dr. Plunkitt) under the False
Claims Act and the Florida False Claims Act. Dr. Plunkitt filed
a motion to dismiss the Amended Complaint (Doc. #32), which the
Court denied on April 13, 2020 (Doc. #41).
According to the Amended Complaint (Doc. #21): Relator is a
registered nurse (RN) and is employed by Naples HMA, LLC (HMA).1
(Doc. #21, ¶ 8.) Dr. Plunkitt is a physician who is “Board
Certified in internal medicine-cardiovascular disease and internal
medicine-clinical cardiac electrophysiology.” (Id. ¶ 10.) NHRS
“is a Florida professional association that was created in 2007
and is owned and operated by” Dr. Plunkitt. (Id. ¶ 9.) NHRS
“specializes in treating cardiovascular disease and clinical
cardiac electrophysiology and provides cardiac services to”
Physicians Regional Medical Center (PRMC). (Id.) As part of her
HMA employment, Relator works in the cardiac catheterization lab
at PRMC, where she “has regularly worked alongside” Dr. Plunkitt.
(Id. ¶ 8.)
Since the beginning of her time working at PRMC, Relator
witnessed Dr. Plunkitt and NHRS submit “false claims to Medicare
and Medicaid for [] unnecessary and dangerous lead extractions and
pocket revisions performed by [Dr. Plunkitt] for pecuniary gain
and not medical necessity.” (Id. ¶ 25.) A lead is a “special
1 HMA was named as a defendant in the initial qui tam
Complaint, but was voluntarily dismissed by Relator on May 31,
2019. (Doc. #15).
wire that delivers energy from a pacemaker or [implantable
cardioverter-defibrillator] to the heart muscle.” (Id. ¶ 28.)
Unnecessary lead extractions can be dangerous because leads “that
have been in place for many years can become very attached to the
heart and blood vessel walls, making them difficult to remove.”
(Id. ¶ 32.) According to the “Chief Medical Consultant for the
California Correctional Health Care Services Office of Legal
Affairs . . . the extraction of defibrillator leads is not
routinely performed in the absence of an infection, particularly
when . . . the leads have been in place for an extended period.”
(Id. ¶ 36.)
Dr. Plunkitt has performed “lead extractions on the
overwhelming number of patients where [Relator] worked alongside
him regardless of whether there was an infection or not.” (Id. ¶
37.) In working alongside Dr. Plunkitt during such procedures,
Relator witnessed “many patients’ cardiac tissue ripped out of
their pericardium in large chunks.” (Id. ¶ 38.)
Dr. Plunkitt performed lead extractions on patients RB, CL,
IG, TP, and DO (collectively, the Representative Patients). (Id.
¶ 38.) These lead extractions were medically unnecessary because
Relator “saw firsthand that there was no infection or other adverse
symptom being caused by the implanted leads, and there was nothing
documented by [Dr. Plunkitt] in the patient charts” indicating the
need for lead extractions. (Id. ¶ 40.) When Dr. Plunkitt
performed lead extractions on the Representative Patients, he
pulled the leads out “with a great deal of force” because the leads
were “anchored into the [P]atients’ heart tissue.” (Id. ¶ 38.)
As part of her employment, Relator had access to Dr.
Plunkitt’s patient records and NHRS’ billing forms. (Id. ¶ 46.)
Relator observed Dr. Plunkitt fill out billing forms for the
Representative Patients’ “unnecessary lead removals.” (Id.)
Relator observed that the NHRS biller picked up the completed
billing forms, and Relator overheard that she “was instructed to
bill those [] codes.” (Id.) Relator also observed that the
Representative Patients’ “unnecessary lead extractions were
included in the PRMC procedure notes, which means that they were
automatically billed for by NHRS.” (Id.) Relator observed Dr.
Plunkitt engage in such billing for medically unnecessary lead
extractions for “hundreds more” patients. (Id.) In performing
some unnecessary lead extractions that resulted in a patient’s
cardiac tissue being ripped out, Dr. Plunkitt “would quickly remove
the heart tissue from [the] coil before [Relator] was able to
capture a photograph of the patients’ cardiac tissue having been
ripped from the patients’ beating heart.” (Id. ¶ 38.)
Relator also witnessed Dr. Plunkitt engage in the medically
unnecessary “implantation of defibrillators and pacemakers.” (Id.
¶ 53.) Relator observed that Dr. Plunkitt “frequently begins to
implant a defibrillator and then performs his own study in an
attempt to justify the implantation of the defibrillator after the
fact and justify the billing.” (Id. ¶ 57)(emphasis in original.)
Dr. Plunkitt and NHRS “collected reimbursement on thousands of
claims to Medicare and Medicaid for the medically unnecessary
implantations.” (Id. ¶ 66.)
II.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. “Factual allegations that are merely consistent
with a defendant’s liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (citations omitted). Thus, the Court engages in a two-
step approach: “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
To survive dismissal in a False Claims Act action, a complaint
must comply with Rule 9(b), which provides that “a party must state
with particularity the circumstances constituting fraud.” Fed. R.
Civ. P. 9(b); United States ex rel. Clausen v. Lab. Corp. of Am.,
290 F.3d 1301, 1308 (11th Cir. 2002). The complaint “must allege
the details of the defendants [sic] allegedly fraudulent acts,
when they occurred, and who engaged in them.” Id. (quotation and
citations omitted).
III.
Any person who “knowingly presents, or causes to be presented,
a false or fraudulent claim for payment or approval” or who
“knowingly makes, uses, or causes to be made or used, a false
record or statement material to a false or fraudulent claim” is
liable under the False Claims Act. 31 U.S.C. § 3729(a)(1)(A)-(B).
The False Claims Act “is the primary law on which the federal
government relies to recover losses caused by fraud . . . [and]
creates civil liability for making a false claim for payment by
the government.” McNutt ex rel. United States v. Haleyville Med.
Supplies, Inc., 423 F.3d 1256, 1259 (11th Cir. 2005). The Act’s
purpose is “to increase private citizen involvement in exposing
fraud against the government . . . .” Cooper v. Blue Cross & Blue
Shield of Fla., Inc., 19 F.3d 562, 565 (11th Cir. 1994). “Private
citizens, called qui tam relators, are authorized to bring FCA
suits on behalf of the United States.” United States v. AseraCare,
Inc., 938 F.3d 1278, 1284 (11th Cir. 2019)(citing 31 U.S.C. §
3730(b)). For her services, a relator is entitled to a substantial
percentage of the recovery. 31 U.S.C. § 3730(d). “In the
healthcare context, a False Claims Act violation typically
involves billing for services not provided or not medically
necessary.” United States v. HPC Healthcare, Inc., 723 F. App’x.
783, 788 (11th Cir. 2018)(citing United States ex rel. Sanchez v.
Lymphatx, Inc., 596 F.3d 1300, 1302 (11th Cir. 2010) (per curiam);
Clausen, 290 F.3d at 1303).
The Florida False Claims Act likewise “authorizes a private
person or the State [of Florida] to initiate a civil action against
a person or company who knowingly presents a false claim to the
State for payment.” Barati v. State, 198 So. 3d 69, 72 (Fla. 1st
DCA 2016). The Florida False Claims Act “mirrors the federal False
Claims Act and is subject to the same pleading standard” noted
infra. United States v. All Children's Health Sys., Inc., No.
8:11-CV-1687-T-27EAJ, 2013 WL 1651811, at *5 (M.D. Fla. Apr. 16,
2013).
A. Count I: § 3729(a)(1)(A) Claim
Count I asserts a claim against NHRS under 31 U.S.C. §
3729(a)(1)(A) of the False Claims Act. In essence, Relator asserts
that NHRS presented claims for payment to Medicare and Medicaid
which were false because a portion of its services were not
medically necessary.
Section 3729(a)(1)(A) applies to “any person who-- (A)
knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval . . . .” 31 U.S.C. §
3729(a)(1)(A). With respect to information, the term “knowingly”
“(A) mean[s] that a person . . . (i) has actual knowledge of the
information; (ii) acts in deliberate ignorance of the truth or
falsity of the information; or (iii) acts in reckless disregard of
the truth or falsity of the information; and (B) require[s] no
proof of specific intent to defraud . . . .” 31 U.S.C. §
3729(b)(1)(A)-(B). The term “claim” “(A) means any request or
demand, whether under a contract or otherwise, for money or
property . . . that (i) is presented to an officer, employee, or
agent of the United States . . . .” 31 U.S.C. § 3729(b)(2)(A).
NHRS argues it is entitled to dismissal of Count I because
(1) Relator’s assertion that Dr. Plunkitt performed medically
unnecessary procedures is premised on “unqualified and unsupported
opinions;” and (2) Relator failed to plead this claim with
particularity, as required by Rule 9(b). (Doc. #38, pp. 11-12.)
The Court finds that neither is a basis for dismissal.
(1) Allegedly Unqualified Expert Opinions
In the Amended Complaint, Relator asserts that “rarely is it
truly medically necessary to perform a lead extraction unless the
lead has caused an infection,” and the “infection rate is just 1-
3%.” (Doc. #21, ¶ 36.) Relator further asserts that unnecessary
lead extractions are dangerous when a patient’s lead has “been in
place for an extended period” because removal may “put a patient
at greater risk of an adverse health event.” (Id.) Relator relies
on “Chief Medical Consultant for the California Correctional
Health Care Services Office of Legal Affairs, Dr. Bennett Feinberg”
as support for these assertions. (Id.) As to the Representative
Patients, Relator alleges the lead extractions were medically
unnecessary because she observed (1) there was no infection; (2)
there were no “other adverse symptom[s] being caused by the
implanted leads”; and (3) their medical charts did not indicate
any need to perform such lead extractions. (Id. ¶ 40.)
NHRS argues that the Court should disregard these alleged
facts because under Fla. Stat. § 766.102(5)(a)-(b) Relator and Dr.
Feinberg are “not permitted to offer expert opinions about the
standard of care applicable to Dr. Plunkitt.” (Doc. #38, p. 11.)
Citing to various medical journal articles, NHRS also disputes
Relator’s assertions as to the lead infection rate and other
medical definitions. (Doc. #38, pp. 12-13.)
Dr. Plunkitt made these same arguments in his motion to
dismiss (Doc. #32, pp. 11-13), and the Court has rejected such
positions (Doc. #41, pp. 8-9). As the Court previously noted,
Section 766.102(5)(a)-(b) of the Florida Statutes govern who may
provide expert opinion testimony in a state-law medical
malpractice lawsuit, and the Court is aware of no legal basis to
apply Fla. Stat. § 766.102 to the review of a federal False Claims
Act complaint. Moreover, the Court may not resolve the parties’
disputes as to the underlying medical literature at this stage of
the proceedings. See Iqbal, 556 U.S. at 679 (“When there are well-
pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.”).
The Court therefore denies this portion of NHRS’s motion to
dismiss.
(2) Whether Relator Pled Count I with Particularity
As the text of § 3729(a)(1)(A) makes clear,
[t]he submission of a false claim is “the sine
qua non of a False Claims Act violation.”
Clausen, 290 F.3d at 1311. “Because it is the
submission of a fraudulent claim that gives
rise to liability under the False Claims Act,
that submission must be pleaded with
particularity and not inferred from the
circumstances.” Corsello, 428 F.3d at 1013.
Therefore, unless a relator alleges with
particularity that false claims were actually
submitted to the government, our precedent
holds that dismissal is proper.
United States v. HPC Healthcare, Inc., 723 F. App’x. 783, 789 (11th
Cir. 2018).
To plead a Section 3729(a)(1)(A) claim with sufficient
particularity, a complaint must “allege the ‘who,’ ‘what,’
‘where,’ ‘when,’ and ‘how’ of fraudulent submissions to the
government.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th
Cir. 2005). A relator may not “merely [] describe a private scheme
in detail but then [] allege simply and without any stated reason
for h[er] belief that claims requesting illegal payments must have
been submitted, were likely submitted or should have been submitted
to the Government.” Clausen, 290 F.3d at 1311. Thus, a complaint
must contain “some indicia of reliability . . . to support the
allegation of an actual false claim for payment being made to the
Government.” Id. (emphasis in original).
NHRS argues that Relator has “fail[ed] to allege reliable,
detailed information to identify a single false or fraudulent claim
that NHRS submitted.” (Doc. #38, p. 16.) The Court disagrees.
In the Amended Complaint, Relator alleges that she observed
Dr. Plunkitt perform unnecessary lead extractions and “personally
add[]” billing codes for such procedures on the Representative
Patients’ billing forms. (Doc. #21, ¶ 46.) The Amended Complaint
includes the dates Dr. Plunkitt performed the allegedly
unnecessary procedures on the Representative Patients, and the
Amended Complaint has attached photographs of medical equipment
used on the Representative Patients; in those photographs, the bag
containing such medical equipment includes the date of the
Representative Patients’ admittance and their redacted names and
dates of birth. The Amended Complaint also alleges Relator
observed that (1) such forms were given to NHRS’ biller, who
Relator overheard “was instructed to bill those [] codes” and (2)
the “unnecessary lead extractions were included in the PRMC
procedure notes, which means that they were automatically billed
for by NHRS.” (Id.)
The Court finds that such factual allegations, coupled with
the Amended Complaint’s attachments, provide the “the necessary
indicia of reliability that a false claim was actually submitted”
and thus satisfy Rule 9(b)’s particularity requirement. United
States ex rel. Mastej v. Health Mgmt. Assocs., Inc., 591 F. App'x
693, 704 (11th Cir. 2014). Although Relator has not provided
specific details for each allegedly unnecessary medical procedure
(Relator alleges Dr. Plunkitt and NHRS billed the government for
hundreds of unnecessary lead extractions and defibrillator and
pacemaker implantations), NHRS is not entitled to dismissal
because the Amended Complaint contains “some of [the required]
information for at least some of the claims.” Clausen, 290 F.3d
at 1312 n.21.
NHRS also asserts that Relator did not work “in a position
that gave her access to billing documents” and that “[s]he does
not have any personal knowledge of or involvement in NHRS’s
billing.” (Doc. #38, p. 16.) The Amended Complaint, however,
explicitly asserts that Relator “had access to each patients’
medical records and NHRS’ billing form,” and Relator has attached
a billing form to the Amended Complaint. (Doc. #21, ¶ 46); (Doc.
#21-6.) Thus, the Court accepts such well-pleaded facts as true
and will not resolve disputed issues of fact at this stage of the
proceedings. Iqbal, 556 U.S. at 679 (“When there are well-pleaded
factual allegations, a court should assume their veracity.”).
Relying on United States ex rel. Atkins v. McInteer, 470 F.3d
1350, 1353 (11th Cir. 2006) and United States v. LifePath Hospice,
Inc., No. 8:10-CV-1061-T-30TGW, 2016 WL 5239863, at *1 (M.D. Fla.
Sept. 22, 2016), NHRS contends that Relator only makes conclusory
allegations that NHRS submitted false claims to the government.
Dr. Plunkitt relied on these cases for the same proposition (Doc.
#32, pp. 14-16), and the Court rejected such a position (Doc. #41,
pp. 13-15). The Court likewise finds those cases unpersuasive as
to NHRS.
The Amended Complaint alleges that Relator observed Dr.
Plunkitt personally add billing codes for the allegedly
unnecessary lead extractions, that she overheard the NHRS biller
“was instructed to bill those CPT codes,” and that she observed
that the extractions “were included in the PRMC procedure notes,
which means that they were automatically billed for by NHRS.”
(Doc. #21, ¶ 46.) Collectively, these alleged first-hand
observations – which were not present in LifePath and Atkins -
provide the required indicia of reliability to support Relator’s
assertion that NHRS actually submitted false claims to the
government.
For the foregoing reasons, the Court finds Relator has alleged
a Section 3729(a)(1)(A) claim with particularity under Rule 9(b).
NHRS’s motion is thus denied as to Count I.
B. Count II: § 3729(a)(1)(B) Claim
Count II asserts a claim against NHRS under § 3729(a)(1)(B)
of the False Claims Act. Section 3729(a)(1)(B) imposes liability
on any person who “knowingly makes, uses, or causes to be made or
used, a false record or statement material to a false or fraudulent
claim . . . .” NHRS argues the elements of a claim under Section
3729(a)(1)(B) include that the government pay out money or forfeit
moneys due. (Doc. #38, pp. 20-21)(citing United States ex rel.
Bernier v. Infilaw Corp., 347 F. Supp. 3d 1075, 1085 (M.D. Fla.
2018)). NHRS moves to dismiss this claim, arguing that the Amended
Complaint “lacks any reliable allegation that the government ever
paid [for a false] claim.” (Doc. #38, p. 21.)
The Court previously concluded that government payment is not
an element of a claim under Section 3729(a)(1)(B). (Doc. #41, pp.
15-17.) NHRS’s motion to dismiss Count II is therefore denied.2
2 NHRS also argues it is entitled to dismissal of Count II
because “the opinions on which [Relator] bases her claim are wrong
or at the very least entirely inconsistent with published
literature . . . .” (Doc. #38, p. 12.) As noted supra, however,
the Court may not resolve disputed issues of fact at this stage of
the proceedings.
C. Count III: Fla. Stat. § 68.082 Claim
Count III asserts a claim against NHRS under Fla. Stat. §
68.082(a)-(b) of the Florida False Claims Act. These provisions
of the Florida False Claims Act impose liability on any person
who:
(a) Knowingly presents or causes to be presented a false
or fraudulent claim for payment or approval; [or]
(bo) Knowingly makes, uses, or causes to be made or used
a false record or statement material to a false or
fraudulent claim.
Fla. Stat. § 68.082(a)-(b).
NHRS agrees that these sections of the Florida False Claims
Act mirror their federal counterparts and are subject to the same
Rule 9(b) pleading standards. NHRS argues it is entitled to
dismissal of Count III for the same reasons noted in Counts I and
Il. Because the Court has rejected those arguments, the Court
also denies NHRS’s motion as to Count III.
Accordingly, it is now
ORDERED :
Defendant’s Motion to Dismiss (Doc. #38) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 13th day of
May, 2020.
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JGHN E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record