United States Ex Rel. Keshav S. Joshi v. St. Luke's Hospital, Inc. Mohammed Bashiti, United States of America, Movant BelowUnited States Ex Rel. Keshav S. Joshi v. St. Luke's Hospital, Inc. Mohammed Bashiti, United States of America, Movant Below
Dr. Keshav S. Joshi (Dr. Joshi) brought a
qui tam
action against St. Luke’s Hospital, Inc. (St.Luke’s), and Dr. Mohammed Bashiti (Dr. Bashiti), St. Luke’s chief of anesthesiology, pursuant to the False Claims Act (FCA),
I. BACKGROUND
In April 2004, Dr. Joshi, an anesthesiologist who practiced from 1989 to 1996 at St. Luke’s, brought a
qui tarn
action under the FCA against St. Luke’s and Dr. Bashi-ti, alleging violations of
In Count II, Dr. Joshi alleges St. Luke’s knowingly submitted false claims to the government for services that were not performed and for supplies that were not provided. The complaint alleges “St. Luke’s would bill Medicaid and Medicare for an entire box of supplies or an entire prescription, while using only a small portion of said supplies/prescription on the Medicaid/Medicare patient for whom said supplies and prescriptions were billed.”
Both counts allege the existence of a conspiracy between “[St. Luke’s and Dr. Bashiti], each of them and/or their employees and agents ... for the purpose of defrauding the United States in violation of
St. Luke’s and Dr. Bashiti filed a motion to dismiss the complaint for failure to plead fraud with particularity under
The district court granted St. Luke’s and Dr. Bashiti’s motion to dismiss, concluding the complaint failed to satisfy
Dr. Joshi appeals, arguing the district court erred in (1) dismissing his complaint, because Joshi satisfied
II. DISCUSSION
A. Standard of Review
The issues raised in this appeal are governed by two standards of review. First, we review de novo the district court’s order granting the motion to dismiss, accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.
Coons v. Mineta,
B. Dismissal of Complaint
Dr. Joshi’s complaint alleges violations of the FCA, particularly
After taking the allegations contained in Dr. Joshi’s complaint as true and drawing all reasonable inferences in his favor, we agree with the district court, Dr. Joshi failed to allege with any specificity the particular circumstances constituting St. Luke’s and Dr. Bashiti’s alleged fraudulent conduct. Absent from the complaint are any mention of (1) the particular CRNAs who allegedly performed patient care and administered anesthesia services unsupervised, (2) when Dr. Bashiti falsely claimed to have supervised or directed CRNAs, (3) who was involved in the fraudulent billing aspect of the conspiracy, (4) what services were provided and to which patients the services were provided, (5) what the content was of the fraudulent claims, (6) what supplies or prescriptions were fraudulently billed and to which patients the supplies or prescriptions were provided, (7) what dates the defendants allegedly submitted the false claims to the government, (8) what monies were fraudulently obtained as a result of any transaction, or (9) how Dr. Joshi, an anesthesiologist, learned of the alleged fraudulent claims and their submission for payment. Simply put, the complaint fails to identify specifically the “who, what, where, when, and how” of the alleged fraud.
Notwithstanding these deficiencies, Dr. Joshi contends his complaint satisfies
We find persuasive the Eleventh Circuit’s reasoning in
Corsello v. Lincare, Inc.,
We fully recognize Dr. Joshi alleges a systematic practice of St. Luke’s and Dr. Bashiti submitting and conspiring to submit fraudulent claims over a sixteen-year period. Clearly, neither this court nor
C. Denial of Request for Leave to Amend the Complaint
Under
In denying Dr. Joshi’s motion for leave to amend the complaint on the basis of futility, the district court held Dr. Joshi’s proposed amendments did not cure the complaint’s deficiencies because St. Luke’s and Dr. Bashiti were “still forced to speculate as to names of patients, supplies, prescriptions, and claims over a sixteen-year period to determine what activity allegedly violate[d] the FCA.” The district court also held that because the specific instances of fraud cited by Dr. Joshi all occurred in November 1995 and Dr. Joshi failed to tie the allegations into a continuous pattern of conduct by St. Luke’s and Dr. Bashiti, the six-year statute of limitations barred the additional claims. On appeal, Dr. Joshi contends the district court erred in denying his motion, arguing the proposed amendments are timely and would not have been futile. We reject both contentions.
First, Dr. Joshi’s proposed amendments do not eliminate the complaint’s deficiencies. Neither proposed amendment indicates Dr. Joshi’s basis for knowledge concerning the alleged submission of fraudulent claims, and the amendments thus lack sufficient “indicia of reliability” to satisfy
Second, the proposed amendments are untimely. Dr. Joshi filed his complaint in the present action in April 2004. We agree again with the district court. Dr. Joshi failed to tie his additional allegations, which allege specific instances of fraud occurring in November 1995, into a continuous pattern of conduct, and the proposed amendments are barred by the applicable six-year statute of limitations.
See
However, in short, we are satisfied Dr. Joshi’s belated argument on the applicability of
D. Refusal to Permit Discovery or Relax
Finally, Dr. Joshi argues the district court erred in not permitting him to conduct discovery in order to satisfy
The issue of whether to relax
Furthermore, the FCA requires a
qui tam
relator to serve a copy of the complaint on the government and disclose all material evidence and information known
Dr. Joshi contends a relaxed pleading standard is appropriate in cases such as this where the fraudulent scheme was complex, the fraudulent conduct took place over a long period of time, and information concerning the alleged fraud is uniquely within the defendants’ control. While we recognize the difficult burden Dr. Joshi bears in constructing his complaint, we decline to adopt Dr. Joshi’s position. As the district court noted, Dr. Joshi’s argument conflicts with his allegation he is an “original source” of St. Luke’s and Dr. Bashiti’s alleged fraudulent conduct.
See
Concededly, the nature of Dr. Joshi’s position with St. Luke’s as an anesthesiologist, rather than as a member of St. Luke’s billing or claims department, may not have made him privy to certain details relevant to his complaint and helpful to satisfying
III. CONCLUSION
Agreeing with the district court, for the reasons stated, we affirm the judgment of the district court.
Notes
. The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri.
. Under
. In response to Dr. Joshi's proposed amendments to the complaint, St. Luke's raised before the district court the statute of limitations issue in its reply memorandum, arguing Dr. Joshi’s November 1995 allegations fell outside the six-year limitations period set forth in
. In support of his argument, Dr. Joshi points to
Emery v. American General Finance. Inc.,