United States ex rel. Maur v. Hage-Korban

981 F.3d 516

UNITED STATES of America EX REL. Gurpreet MAUR, M.D., Plaintiff-Appellant,

v.Elie HAGE-KORBAN; Delta Clinics, PLC, dba The Heart and Vascular Center of West Tennessee; Knoxville HMA Holdings, LLC, dba Tennova Healthcare; Jackson Hospital Corporation, dba Regional Hospital of Jackson; Dyersburg Hospital Company, LLC, dba Dyersburg Regional Medical Center, Defendants-Appellees.

No. 20-5301

United States Court of Appeals, Sixth Circuit.

Argued: October 7, 2020

Decided and Filed: December 1, 2020

ARGUED: Shelby Serig, MORGAN & MORGAN P.A., Jacksonville, Florida, for Appellant. Jeffrey Scott Newton, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, Jackson, Mississippi, for Appellees Elie Hage-Korban and Delta Clinics. Brian D. Roark, BASS, BERRY & SIMS PLC, Nashville, Tennessee, for Appellees Knoxville HMA Holdings and Dyersburg Hospital Company. ON BRIEF Shelby Serig, MORGAN & MORGAN P.A., Jacksonville, Florida, for Appellant. Jeffrey Scott Newton, Micahel Thomas Dawkins, Joseph Lott Warren, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, Jackson, Mississippi, for Appellees Elie Hage-Korban and Delta Clinics. Brian D. Roark, BASS, BERRY & SIMS PLC, Nashville, Tennessee, for Appellees Knoxville HMA Holdings and Dyersburg Hospital Company. David J. Chizewer, GOLDBERG KOHN LTD., Chicago, Illinois, for Amicus Curiae.

Before: SILER, SUTTON, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge.

In this qui tam action, Dr. Gurpreet Maur accuses Dr. Elie Hage-Korban ("Korban") of submitting false claims to Medicare for unnecessary cardiac testing and procedures, in alleged violation of the False Claims Act (FCA). See 31 U.S.C. § 3729(a)(1)(A)–(C), (G). The district court dismissed Maur's complaint pursuant to the FCA's public-disclosure bar, 31 U.S.C. § 3730(e)(4). Because we conclude Maur's allegations are "substantially the same" as those exposed in a prior qui tam action and Maur is not an "original source" as defined in the FCA, we AFFIRM the district court's dismissal.

I.

Dr. Korban, along with his medical practice Delta Clinics, is engaged in the private practice of diagnostic and interventional cardiology. This is not the first time he has been accused of this alleged scheme to defraud the government.

A.

In June 2007, Dr. Wood Deming filed a qui tam action (the "Deming action") under the FCA against two of the defendants in this case—Korban and Regional Hospital of Jackson ("Jackson Regional")—as well as other Tennessee hospitals where Korban performed cardiac procedures. See United States ex rel. Deming v. Jackson-Madison Cnty. Gen. Hosp. , No. 1:07-cv-01116-SHL-egb (W.D. Tenn. June 13, 2007). In essence, Deming charged the defendants with submitting fraudulent claims to federal government insurance programs by "ignor[ing] blatant overutilization of cardiac medical services ... by Korban." The United States intervened in the Deming action and ultimately settled the case for cardiac procedures performed between 2004 and 2012.

Two of those settlements are pertinent here. First, as a condition of his settlement, Korban entered into an Integrity Agreement (the "Korban IA") with the Office of Inspector General for the United States Department of Health and Human Services (the "Inspector General"). The Korban IA was in effect from November 13, 2013 through November 13, 2016 and was publicly available on the Inspector General's website during that time. It required Korban to engage an Independent Review Organization to monitor "[c]oding, billing, and claims submission to all Federal health care programs by or on behalf of Korban, and reimbursement records for cardiology items." The Korban IA further called for the Organization to conduct a review of "[c]ardiac procedures including interventional cardiac procedures ... performed by Korban" and to "evaluate and analyze the medical necessity and appropriateness" of those procedures. It was then to generate quarterly reports of these findings for the Inspector General, who retained ultimate supervisory authority over Korban's medical practice. The U.S. Department of Justice issued a press release on December 19, 2013 that detailed the exposed fraudulent scheme and outlined the terms of Korban's settlement. In the second agreement, entered into in July 2015, defendant Jackson Regional agreed to a $510,000 settlement with the Inspector General. The Justice Department and Jackson Regional both issued press releases concerning that settlement too.

B.

Now to the present allegations. Plaintiff-Relator Dr. Maur is a cardiologist who began working for Korban's medical practice, Delta Clinics, in 2016. At bottom, he alleges that Korban is "simply up to his old tricks." Specifically, his complaint lists five examples of "unnecessary angioplasty and stenting" and four examples of "unnecessary cardiology testing" performed by Korban on patients between March and November 2016. Those allegedly unnecessary procedures were paid for in part by Medicare.

In his complaint, Maur recognizes that "this exact scheme was previously detailed and exposed in" the Deming action, though the named defendants differ slightly. In addition to Korban and Jackson Regional, Maur has also sued Jackson Regional's corporate parent (Tennova Healthcare), a second Tennova subsidiary where Maur performed cardiac procedures (Dyersburg Regional Medical Center), and Tennova's corporate parent (Community Health Systems). He alleges these entities knew or should have known that many of Korban's procedures were medically unnecessary.

C.

Maur filed his initial qui tam complaint in April 2017. The United States declined to intervene. The defendants then moved to dismiss, arguing that Maur's claims could not proceed because of the FCA's public-disclosure bar, 31 U.S.C. § 3730(e)(4). The district court agreed. It found that "[a]lthough Maur includes several new Defendants, and describes different specific patient examples, there is not only ‘substantial identity’ between the fraudulent scheme he alleges in his Amended Complaint and the fraudulent scheme that the Deming qui tam action publicly exposed—it is the same fraudulent scheme." United States ex rel. Maur v. Hage-Korban , No. 1:17-cv-01079-STA-jay, 2020 WL 912753, at *5 (W.D. Tenn. Feb. 25, 2020). The district court further determined that "Maur is not an original source" as defined in the FCA. Id. Thus, it dismissed Maur's qui tam action in its entirety. Id. Maur appealed.

II.

The FCA "prohibits submitting false or fraudulent claims for payment to the United States, [ 31 U.S.C.] § 3729(a), and authorizes qui tam suits, in which private parties bring civil actions in the Government's name, § 3730(b)(1)." Schindler Elevator Corp. v. United States ex rel. Kirk , 563 U.S. 401, 404, 131 S.Ct. 1885, 179 L.Ed.2d 825 (2011). The Act encourages relators "to act as private attorneys-general in bringing suits for the common good," United States ex rel. Poteet v. Medtronic, Inc. , 552 F.3d 503, 507 (6th Cir. 2009) (internal quotation mark omitted), and provides often-lucrative incentives to do so. If the government proceeds with the action, the qui tam plaintiff is entitled to "at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim." 31 U.S.C. § 3730(d)(1). If the government chooses not to intervene, the qui tam plaintiff can recover even more—"not less than 25 percent and not more than 30 percent" of the same. Id. § 3730(d)(2).

To guard against potential "parasitic lawsuits" and "opportunistic plaintiffs," Congress included a public-disclosure bar in the FCA. Poteet , 552 F.3d at 507 (citation omitted); see 31 U.S.C. § 3730(e)(4)(A). That provision "bars qui tam actions that merely feed off prior public disclosures of fraud." United States ex rel. Holloway v. Heartland Hospice, Inc. , 960 F.3d 836, 843 (6th Cir. 2020). The bar is "wide-reaching," but it "stop[s] short of ‘wiping out qui tam suits that rest on genuinely new and material information.’ " Id. at 851 (alteration adopted) (citations omitted). As most recently amended in 2010, the FCA's public-disclosure bar directs that:

The court shall dismiss an action or claim under [the FCA], unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed—

(i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party;

(ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or

(iii) from the news media,

unless the ... person bringing the action is an original source of the information.

31 U.S.C. § 3730(e)(4)(A).

We employ a three-step analysis to decide whether this public-disclosure bar applies. First, we ask whether, before the filing of the qui tam complaint, there had been any public disclosures from which fraud might be inferred. Holloway , 960 F.3d at 844. Second, we assess whether the allegations in the complaint are "substantially the same" as those contained in the public disclosures. Id. at 849. And third, we ask whether the qui tam plaintiff is nevertheless an "original source of the information." See id. at 843. Maur claims that the district court erred at all three steps.

A.

At the first step, Maur concedes that the Deming action and the press releases were all publicly disclosed. However, he contends that the Korban IA was not a public disclosure as defined in the FCA.

As an initial matter, Maur has forfeited this argument by failing to raise it below. See Armstrong v. City of Melvindale , 432 F.3d 695, 700 (6th Cir. 2006). The hospital defendants specifically argued in their motion to dismiss that the Korban IA was a public disclosure. Yet Maur failed to contest this argument in his response. But even if the issue were not forfeited, we would still conclude that the contents of the Korban IA qualify as a public disclosure.

The Korban IA was publicly available through the Inspector...