Cervalli v. Piedmont Healthcare, Inc.

511 F.Supp.3d 1363

Lisa CERVALLI, Plaintiff,

v.PIEDMONT HEALTHCARE, INC., et al., Defendants.

CIVIL ACTION FILE NO. 1:20-CV-2790-TWT

United States District Court, N.D. Georgia, Atlanta Division.

Signed January 5, 2021

David James Worley, James M. Evangelista, Kristi Stahnke McGregor, Evangelista Worley, LLC, Atlanta, GA, Helen Kim Ho, HKH Law LLC, Duluth, GA, for Plaintiff.

Edward T. Ellis, Pro Hac Vice, Littler Mendelson, P.C., Philadelphia, PA, Amanda Trull, Littler Mendelson, P.C., Blaze R. Knott, Whitney M. Ferrer, Littler Mendelson, Atlanta, GA, for Defendants.

OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge

This is a False Claims Act retaliation case. It is before the Court on the Defendants’ Motion to Dismiss the Plaintiff's Amended Complaint [Doc. 22]. For the reasons set forth below, the Defendants’ Motion to Dismiss the Plaintiff's Amended Complaint [Doc. 22] is DENIED.

I. Background

A. Factual Background

The Plaintiff, Lisa Cervalli, brings these False Claims Act ("FCA") and Georgia False Medicaid Claims Act ("GFMCA") retaliation claims against her former employer, Piedmont Healthcare, Inc. and Piedmont Henry Hospital, Inc. (collectively, "the Defendants"). (Am. Compl. ¶¶ 1–3.) The Plaintiff worked as a Certified Pharmacy Technician at Piedmont Henry Hospital from August 3, 2015 to July 2, 2017. (Id. ¶ 6.) During her employment, the Defendants used EPIC, a suite of software solutions for billing, patient registration, and storing clinical information. (Id. ¶ 30.) The pharmacy utilized an EPIC module, EPIC Willow, to track and bill medications dispensed by the pharmacy. (Id. ¶ 31.) While some comparable software programs bill a patient's account upon administration of a prescribed medicine, EPIC Willow bills a patient's account upon dispensing the prescribed dose. (Id. ¶ 32.) However, there are many reasons a dispensed dose might go unused: the patient could be discharged, transferred to another department, or die before the medicine is administered. (Id. ¶ 42.) If a prescribed dose is dispensed but not administered, the patient's account remains billed for that medication unless someone manually credited to the patient's account for the unused dose. (Id. ¶ 32.) Oftentimes, nurses would neither credit a patient's account for unused doses nor inform the pharmacy that the dispensed doses went unused. (Id. ¶ 33.) In other instances, the pharmacy would receive repeat orders for doses that were misplaced, and the patient would be billed for both the administered and the misplaced doses dispensed by the pharmacy. (Id. ¶¶ 40–41.)

Because EPIC Willow has no automated means for crediting a patient's account, pharmacy technicians were responsible for "breaking down" the unused doses and manually crediting the patient's account. (Id. ¶¶ 43–44.) Shortly after her employment began, the Plaintiff noticed a backlog of these unused medications and that crediting a patient's account for these unused doses was "rare." (Id. ¶ 45.) In response to this backlog, the Plaintiff informed her supervisors she was willing to work through the backlog to credit patient accounts for the unused drugs. (Id. ¶ 47.) This offer was refused because other employees were already working on the backlog, but the Plaintiff soon came to believe that these medications were still not being credited back to the patients’ accounts. (Id. )

Given her previous work experience, the Plaintiff believed many of the patients affected by these practices were government-insured individuals. (Id. ¶ 46.) Because of her concerns regarding the Defendants’ billing practices, the Plaintiff began to report these practices to the Defendants’ executives in January 2016. (Id. ¶ 49.) First, the Plaintiff reported these concerns to the Piedmont Henry Hospital's interim CEO, who referred her to Jana Warren, the head of the Piedmont Henry Hospital's human resources department. (Id. ¶¶ 48–50.) In speaking with Warren, the Plaintiff "stated she believed Piedmont was engaging in insurance fraud." (Id. ¶ 50.) The Plaintiff's supervisor, Celeste Fowler, then learned that the Plaintiff had raised her concerns to others. (Id. ¶ 51.) Soon thereafter, the Plaintiff "began being harassed, yelled at, disparately treated, and threatened repeatedly at work until her termination." (Id. ) As an example of her disparate treatment, the Plaintiff alleges that she was required to carry dozens more cases of IVs than other pharmacy technicians, and that she experienced last-minute schedule changes and threats of termination if she did not arrive on-time. (Id. ¶¶ 53–54.) After her concerns went unaddressed, the Plaintiff reached out to another executive, Piedmont Henry Hospital CFO Sherry Henderson, in February 2016. (Id. ¶ 55.) As a result, Henderson called a meeting of pharmacy staff in an effort to end any ongoing issues. (Id. ¶ 56.) Shortly after this meeting, the pharmacy instituted a "Three-Day Rule," which the Plaintiff was told would result in an automatic credit for any medication not administered within three days of being dispensed. (Id. ¶ 57.) However, the Plaintiff believed these automatic credits were impossible on EPIC Willow, and her subsequent attempts to manually credit accounts were stopped by supervisors. (Id. ¶¶ 57, 61–62.)

Because the Plaintiff saw no further corrective action, she again reported her concerns in November 2016, this time to Piedmont Healthcare Chief Compliance Officer Mark Guza. (Id. at ¶ 65.) Soon thereafter, the pharmacy underwent an audit, and the Plaintiff alleges that retaliation against her increased. (Id. ¶¶ 66–72.) For example, the Plaintiff alleges that a manager "threatened to fire her if she ever reported to HR again." (Id. ¶¶ 67, 72.) However, a few months later without sufficient perceived changes, the Plaintiff "began exploring the possibility of blowing the whistle to the government by pursuing a qui tam lawsuit under the False Claims Act." (Id. ¶ 73.) In June 2017, she also approached Piedmont Henry Hospital's new CEO, Deborah Armstrong, with her concerns. (Id. ¶¶ 75, 77.) Armstrong referred the Plaintiff to Amy Stroup, Piedmont Healthcare's Director of Employee Relations. (Id. ¶ 77.) The two women spoke by phone and in person on June 30, 2017. (Id. ¶ 78.) They arranged to speak again July 2, but when they met, Stroup "informed Plaintiff that ‘the problems’ Plaintiff was having in the pharmacy were ‘not going to get resolved.’ " (Id. ¶ 79.) Stroup then told the Plaintiff that the Defendants had decided to terminate her employment. (Id. )

B. Statutory Background

As a result of her treatment and termination, the Plaintiff has filed these FCA and GFMCA retaliation claims against the Defendants. The FCA penalizes those who "knowingly present[ ], or cause[ ] to be presented, a false or fraudulent claim for payment or approval" to the federal government. 31 U.S.C. § 3729(a)(1). Private individuals can bring civil actions for FCA violations on behalf of the government. 31 U.S.C. § 3730(a). One such type of FCA violation is a "reverse false claim," where an individual identifies an "overpayment" made by the federal government but fails to return the excess amount paid within sixty days. See 31 U.S.C. § 3729(a)(1)(G) ; 42 C.F.R. §§ 401.305(a) – (b) ; United States ex rel. Matheny v. Medco Health Sols., Inc. , 671 F.3d 1217, 1221–22 (11th Cir. 2012) (defining reverse false claims).

In addition to complaints related to false claims, the FCA also allows employees to seek relief from an employer where the employee "is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of" protected activity, or "lawful acts done by the employee ... in furtherance of an action under this section or other efforts to stop [one] or more violations" of the FCA. 31 U.S.C. § 3730(h)(1) ; see also United States v. HPC Healthcare, Inc. , 723 F. App'x 783, 791 (11th Cir. 2018) (defining the "protected activity" and "unlawful discrimination" requirements). Further, Georgia courts have noted that "[t]he statutory language in the GFMCA ... mirrors the language in the federal False Claims Act, and courts generally look to federal case law to decide issues under the GFMCA." Murray v. Cmty. Health Sys. Prof'l Corp. , 345 Ga. App. 279, 283, 811 S.E.2d 531 (2018). Therefore, the federal and state retaliation claims rely upon identical requirements. Compare 31 U.S.C.§ 3730(h)(1) with O.C.G.A. § 49-4-168.4 ; see, e.g., Reddick v. Jones , Civ. A. No. 1:14-CV-0020, 2015 WL 1519810, at *6 (N.D. Ga. Mar. 11, 2015) ("Because [the Plaintiff] has met the FCA's anti-retaliation pleading requirements, the Court finds that she has met the GFMCA's pleading requirements.").

II. Legal Standards

A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a "plausible" claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ; Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is "improbable" that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely "remote and unlikely." Bell Atlantic v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A. , 711 F.2d 989, 994–95 (11th Cir. 1983) ; see also Sanjuan v. American Bd. of Psychiatry & Neurology, Inc. , 40 F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading stage, the plaintiff "receives the benefit of imagination"). Generally, notice pleading is all that is required for a valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc. , 753 F.2d 974, 975 (11th Cir. 1985), cert....