Hospitals have long seethed over employees who exploit their inside information to become whistleblowers.  There’s generally not much they can do besides seethe unless the employee has some special duty of confidentiality such as attorneys have.  But Mount Sinai Hospital in New York may have found a way to do something more constructive than seething.

Two employees, Joseph Gaston and Xiomary Ortiz, filed a whistleblower action accusing the hospital of Medicaid fraud.  The allegations include “doctor swapping,” where the service was provided by a doctor other than the one named in the Medicaid bill; upcoding; billing for services never performed; and sending multiple bills for a single item of service.

The hospital is fighting back.  In addition to denying the alleged wrongdoing, last Wednesday the hospital filed a motion accusing Joe and Xi of wrongdoing.  The hospital argues that the two employees couldn’t have made their allegations without exploiting confidential patient information.  In other words, the hospital’s position is not that Joe and Xi exploited inside information about the hospital; it’s that they violated the privacy of patients by accessing their confidential medical records to make their whistleblower case.

The case is Ortiz v. Mount Sinai, No. 1:13-cv-04735 (S.D.N.Y.).