Sir Arthur Conan Doyle might have called it “The Case of the Doctors Who Work More than 24 Hours a Day.” Unfortunately for the physician group in question, Sir Arthur wasn’t the author; the federal court for the Northern District of Illinois was. And that court took a dim view of the practice of billing Medicare for work that would take in excess of 24 hours a day per-doctor. The court singled out one especially industrious doctor for putting in a remarkable 43-hour day.
Dr. Oughatiyan filed a False Claims Act case against his former employer, IPC The Hospitalist Co., a company that employs hospitalists and places them in hospitals across the country. He alleged that IPC had systems in place that allowed and encouraged its physicians to “upcode,” i.e., bill Medicare for more work than was actually done. For example, they billed Medicare for a 50-minute bedside visit ($121) when the visit was actually only 30 minutes ($82).
The United States joined in the case. IPC moved to dismiss, arguing that the plaintiffs’ complaint failed to meet Rule 9(b)’s requirement that a fraud complaint state the fraud with “particularity.” IPC argued that the complaint was defective unless it stated the “who,” “where,” and “how” of each fraudulent act.
The court applied the Seventh Circuit’s interpretation of the particularity requirement: “particularity” means the details you’d expect in the first paragraph of a good newspaper story. Under that test “who, what, when, where, and how” are examples of that detail rather than “essential elements.”
By that interpretation, the court concluded, the complaint was more than adequate. The “who” is IPC; the “what” is fraudulent Medicare claims; the “when” January 1, 2003, forward; and the “how” is by upcoding. So the court denied IPC’s motion to dismiss, and the case against it will proceed. The court did, however, grant the motion to dismiss as to IPC’s affiliates, noting that the complaint focused on IPC and said little about the affiliates.
The decision is U.S. ex rel. Oughatiyan v. IPC The Hospitalist Co., Case No. 09 C 5418 (N.D.Ill., Feb. 17).
