208 F. Supp. 3d 1296
S.D. Fla.2016Background
- Relator (Dr. Schiff) filed a qui tam FCA suit; the United States intervened alleging that Dr. Gary Marder/ADSCC and Dr. Robert Kendall/KML submitted false Medicare claims for dermatology, radiation, and pathology services.
- Dr. Marder ran two clinics, frequently absent from the offices (over 50% of business days); NPPs and a PA (Martin Burke) often administered superficial (ortho‑voltage) radiation under verbal directions; medical physicist services (CPT 77336) were billed though the physicist (Kader) largely did not provide contemporaneous services.
- Dr. Marder billed pathology globally (PC+TC) though specimens were sent to Kendall’s lab 130+ miles away; Kendall invoiced Marder only for the TC and was paid a discounted per‑slide fee.
- The Government moved for summary judgment on multiple FCA counts and related common‑law claims; briefing was supplemented after the Supreme Court’s Escobar decision on implied false certifications.
- The court treated many of Defendants’ factual contests as uncontroverted where unsupported, drew adverse inferences from individual defendants’ frequent Fifth Amendment invocations, and relied on the record to resolve what could be decided as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marder submitted factually or legally false claims to Medicare | Marder billed for services he did not perform/supervise (absences), billed for physicist services not provided, upcoded radiation fractions, and used false documentation | Marder disputes scienter, medical necessity, and proper CPT coding; factual disputes require jury resolution | Granted in part: summary judgment that Marder knowingly submitted false claims for services he did not perform/supervise and for physicist services; denial as to upcoding and medical‑necessity disputes (those factual issues reserved for jury) |
| Whether Kendall caused false claims / had requisite knowledge for FCA liability | Kendall’s discounted pathology arrangement was part of scheme to induce referrals and cause false claims | Kendall asserts bona fide employment/legitimate business relationship and lack of knowledge of falsity | Denied: factual dispute remains whether Kendall knowingly caused false claims; summary judgment not warranted against Kendall on FCA causation/knowledge |
| Whether Marder–Kendall arrangement violated AKS/Stark and thus rendered claims false | The discounted pathology payments constituted impermissible remuneration leading to false certifications/payments | Defendants invoke bona fide employment safe harbor and fair‑market‑value defenses; factual issues over employment status, fair market value, and intent | Denied: material factual issues remain (employee status, fair market value, intent), so AKS/Stark‑based FCA liability not resolved at summary judgment |
| Whether Government entitled to common‑law restitution (unjust enrichment/payment by mistake) and whether affirmative defenses preclude relief | Government seeks recovery of amounts paid where FCA/common‑law liability established | Defendants raise multiple affirmative defenses including lack of scienter and safe harbors | Granted in part: common‑law recovery allowed to the extent FCA liability was established against Marder; many affirmative defenses are merely denials of elements and do not preclude summary judgment where record evidence supports liability; some defenses (safe harbor issues) remain for trial |
Key Cases Cited
- Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (U.S. 2016) (recognizes implied false certification theory under the FCA)
- Baxter v. Palmigiano, 425 U.S. 308 (U.S. 1976) (Fifth Amendment does not bar adverse inferences in civil cases)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standard: movant’s initial burden)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (genuine dispute of material fact standard at summary judgment)
- United States ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301 (11th Cir. 2002) (presentment requirement is essential to FCA liability)
- Ameritox, Ltd. v. Millennium Labs., Inc., 803 F.3d 518 (11th Cir. 2015) (discusses remuneration concept relevant to AKS/Stark issues)