Judge agrees double-booked surgery at Mass. General sounds awful, but puts whistleblower lawsuit on life support

A federal judge today dismissed a lawsuit by an anesthesiologist who sued Mass. General over double-booked surgeries - but gave her 45 days to come up with detailed proof the government was billed for operations senior surgeons did not actually participate in and so re-open the suit.

In a lawsuit initially filed in 2015, Dr. Lisa Wollman - who now works at New England Baptist Hospital - alleged that not only did the practice, in which surgeons had two operations booked at the same time, and in one case, three operations, leave patients on the operating table under anesthesia longer than was safe, it was fraud because the federal government was paying for the trained attention of surgeons who had minimal involvement in some of the operations.

Wollman provided specific details about the hours, surgeons and operating rooms involved between 2011 and 2013, but could not provide specific billing records showing the government was billed improperly for the time slotted for senior surgeons.

In a decision released today, US District Court Judge Allison Burroughs wrote that without specific proof Medicare was billed for double booked operations, Wollman has no case under the federal whistleblower law, because the law at its heart is aimed at recouping money fraudulently taken from the government - and requires people bringing suits to show detailed information initially, rather than trying to collect it during pre-trial discovery.

Although it may seem unfair and perhaps even contrary to the public interest to require the relator [Wollman] to provide the requisite level of detail about fraudulent billing without the benefit of even minimal discovery, the [law] is fundamentally a tool to help the government recoup funds expended for false claims.

Mass. General has refused to give Wollman access to its billing records in the cases - in fact, when she was still working at the hospital, it threatened her with disciplinary action when she even raised the more general issue of potential medical problems related to the practice. Both federal and state agencies that reimburse hospitals have declined to get involved.

Burroughs dismissed Wollman's lawsuit "without prejudice" and gave her 45 more days to file a new complaint with specific details about how Mass. General allegedly defrauded the government

Although she faces an uphill battle, the Court cannot conclude at this time that her request for leave to amend [her complaint with more details] is futile.

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Comments

Interesting

"Wollman has no case under the federal whistleblower law, because the law at its heart is aimed at recouping money fraudulently taken from the government - and requires people bringing suits to show detailed information initially, rather than trying to collect it during pre-trial discovery."

Seems like Dr. Wollman could possibly be on to something. If she cannot get the relevant records, then can an AG/DOJ or whatever, representing the interests of the taxpayers get the billing records? It's not like the US has to subpoena them...the US already has them, as the payer.

I don't see why Medicare would be recalcitrant about showing the bills to the DOJ's office. I understand about patient confidentiality, but these things happen all the time. "Patient A, Patient B" etc.

This is how billing scams work. People get caught quite often.

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