Vicki Sheldon is the hands-down favorite to claim this month’s Most Imaginative Whistleblower Claim award. Vicki’s at-the-time husband Duane was employed at Kettering Health Network (KHN). Duane had an affair with another KHN employee, and the two of them impermissibly accessed Vicki’s medical records. KHN found out about the improper access and told Vicki.
So Vicki filed a whistleblower complaint alleging that KHN violated the False Claims Act. You read that correctly. Vicki sued KHN. Here’s her theory. The Health Information Technology for Economic & Clinical Health Act—HITECH—provides financial incentives for health care providers that meet “meaningful use” standards for their electronic health record systems. Those standards include security safeguards. KHN certified that it met the standards, and it received incentive payments.
But, Vicki reasoned, if Duane and his girlfriend could access Vicki’s records, then the KHN system must not be secure. So KHN’s certification must have been false—a False Claims Act violation. QED.
The federal court for the Southern District of Ohio didn’t see it Vicki’s way. It dismissed the case and wouldn’t allow her to amend. Vicki appealed to the Sixth Circuit. On March 7 that court unanimously affirmed, rejecting Vicki’s theory that an occasional security breach is proof that KHN failed the HITECH security standards or that its certifications were false.
The case is U.S. ex rel. Sheldon v. Kettering Health Network, 2016 BL 68030 (6th Cir. 2016).
