Health Law Daily FCA retaliation claims require an employer-employee relationship
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Wednesday, June 5, 2019

FCA retaliation claims require an employer-employee relationship

By David Yucht, J.D.

False Claim Act (FCA) retaliation and conspiracy causes of action filed against podiatrists by a former colleague were dismissed because there was no employer-employee relationship among the podiatrists.

A federal judge in Detroit, Michigan dismissed FCA retaliation and conspiracy causes of action filed against podiatrists associated with Detroit Medical Center by a former colleague who had reported alleged acts of health care fraud to the government because there was no employer-employee relationship among the podiatrists. The court, however, refused to throw out tortious interference with an advantageous business relationship claims based on the orchestrating of false complaints with the intent to have physician hospital privileges terminated (El-Khalil v. Tedeschi, May 31, 2019, Goldsmith, M.).

A podiatrist, who had full privileges at Detroit Medical Center sued the medical center as well as other podiatrists who had privileges at the hospital claiming that he reported their alleged acts of health care fraud to the government and that he subsequently lost his staff privileges in retaliation. He brought three claims: retaliation in violation of the False Claims Act; conspiracy to retaliate; and tortious interference with an advantageous business relationship.

Retaliation. The court dismissed the retaliation and conspiracy to retaliated claims. The court noted that the issue here was whether there could be liability for retaliation under the FCA where none of his former colleagues was his employer or in an employment-like relationship with him. The court determined that the FCA’s protections did not extend to the complaining podiatrist because Congress "intended to limit the FCA to employment-like relationships." The conspiracy claim was also legally untenable, because the FCA does not provide for conspiracy liability against non-employers.

Tortious interference. The court, however, refused to throw out the tortious interference claims. The court noted that to prevail on a tortious interference claim there must be proven an intentional doing of a per se wrongful act or the doing of a lawful act with malice and unjustified in law for the purpose of invading the contractual rights or business relationship of another. In the complaint, the podiatrist alleged that his former colleagues interfered with an advantageous business relationship by orchestrating false complaints against him with the intent to have his privileges at Detroit Medical Center terminated. The Michigan courts have considered unethical conduct to be a per se wrongful act and the making of false statements in a complaint is unethical conduct. Also, the complaint made clear that the podiatrist had the benefit of receiving professional consultations as a result of his hospital privileges; that his former colleagues concocted a scheme to deprive him of his privileges; and that he suffered damages as a result of losing his privileges.

The case is No. 2:18-cv-12759-MAG-APP.

Attorneys: Ben M. Gonek (Law Offices of Ben M. Gonek, PLLC) for Ali El-Khalil. Roger P. Meyers (Bush Seyferth & Paige, PLLC) for Anthony Tedeschi.

MainStory: TopStory CaseDecisions FCANews FraudNews EmploymentNews MichiganNews

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