In addition to the most common grounds upon which dismissal is sought in FCA actions, Mount Sinai Hospital and Mount Sinai Radiology Associates recently requested that the district court throw out FCA claims based on their argument that relators relied on improperly obtained patient records in support of their allegations. Relators, who were employed in various positions with defendants, alleged FCA violations based upon false and fraudulent billing in connection with physician services and attached patient medical records to their complaint in support of their FCA claims. Defendants argued that relators should be precluded from relying on the medical records attached to their complaint because allegedly relators obtained those records without authorization following an internal investigation at the Hospital. Relators countered that there were no facts before the district court to support any assertion that the medical records were obtained improperly and cited HIPAA’s exception for whistleblowers to reveal information to government authorities and private counsel if those whistleblowers have a good faith belief that their employer engaged in unlawful conduct.
In its opinion, the district court rejected defendants’ arguments and found that it was premature to conclude that relators had improperly obtained records from defendants. See U.S. ex rel. Ortiz v. Mount Sinai Hosp., No. 13-cv-04735 (S.D.N.Y.), Opinion dated Nov. 9, 2015. The district court also rejected defendants’ other grounds for dismissal, concluding that relators pleaded their FCA claims in accordance with Rule 9(b).
Not surprisingly, these defendants could not upend the qui tam action by challenging relators’ use of patient records to support the allegations in their complaint. Relators, however, have faced a much stiffer challenge when relying on privileged information in formulating FCA claims. See, e.g., U.S. ex rel. Frazier v. IASIS Healthcare Corp.; U.S. ex rel. Fair Laboratory Practices Associates v. Quest Diagnostics Inc.