Chesbrough v. VPA, P.C.
2011 U.S. App. LEXIS 17515
6th Cir.2011Background
- Chesbroughs filed a qui tam FCA action against Visiting Physicians Association (VPA) and alleged false Medicare/Medicaid billings for defective radiology studies.
- They claimed VPA billed for tests that were nondiagnostic or of poor quality and that VPA was not owned by a physician, implying an illegal corporate structure.
- The Chesbroughs attached 27 x-ray studies and a review of 10 ultrasound studies alleging deficiencies, with patient, physician, and technician details.
- The United States declined to intervene; the district court dismissed the complaint for failure to plead with particularity under Rule 9(b).
- On appeal, the court analyzes whether the FCA claims satisfy Rule 9(b)’s particularity requirements, including presentment of actual claims and the theory of implied certification.
- The Sixth Circuit affirms dismissal, holding the complaint failed to identify any specific false government claim, even though it acknowledged a potential basis for a fraudulent scheme involving worthless tests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 9(b) sufficiency for FCA claim | Chesbroughs contend 9(b) is met by attached studies and alleged scheme. | VPA argues no specific false claim identified and no concrete presentment. | Rule 9(b) not satisfied; dismissal affirmed. |
| Presentment requirement under § 3729(a)(1) | Relators assert a representative set of claims shows presentment within the class. | VPA contends no actual claims identified back to the government. | No actual claims identified; 9(b) failure affirmed. |
| Implied certification theory viability | Plaintiffs rely on implied certification to render tests fraudulent for payment. | Defendant argues no express regulation requiring compliance as a prerequisite to payment. | Implied certification not sufficiently pleaded; insufficient to plead fraud under FCA here. |
| Alternative § 3729(a)(2) and (7) theories | Relator contends liability despite lack of presentment for these provisions. | Defendant asserts need to connect to an actual government obligation or payment. | Claims under § 3729(a)(2) and (7) fail for lack of concrete obligation and causal link. |
Key Cases Cited
- United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493 (6th Cir. 2007) (requires identifying actual false claims for 9(b) pleading)
- United States ex rel. Mikes v. Straus, 274 F.3d 687 (2d Cir. 2001) (implied certification theory limits liability to claims tied to payment)
- United States ex rel. Augustine v. Century Health Servs., Inc., 289 F.3d 409 (6th Cir. 2002) (recognizes implied certification line of liability in FCA)
- United States ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496 (6th Cir. 2008) (9(b) pleading requires a representative sample of false claims)
- United States ex rel. Marlar v. BWXT Y-12, LLC, 525 F.3d 439 (6th Cir. 2008) (failure to connect alleged false reports to government claims warrants dismissal)