By Lindsey Firnbach, J.D.
A qui tam False Claims Act (FCA) claim was dismissed with prejudice by a Florida district court after it found that the amended complaint brought by the realtor failed to state a claim. The realtor had argued that his former employer, a pharmacy chain in Florida, had terminated his employment in an effort to retaliate against him for his resistance to participating in the submission of fraudulent Medicare claims. His assertion of belief, rather than factual evidence, that fraudulent claims were submitted by his employer caused the court to dismiss his amended claim (U.S. ex rel. Oemar v. Glades Drugs, Inc., October 26, 2017, Cohn, J.).
Price manipulation. The realtor, a pharmacist at one of the Florida pharmacies, alleged that the company fraudulently billed Medicare by engaging in average wholesale price manipulation, purchasing compounds at smaller quantities in order to obtain higher Medicare reimbursements, and using marketing to increase prescriptions. He alleged that he became aware that the company was forging his initials on prescriptions in order to certify that the fraudulent billings were accurate. After insisting that the company cease engaging in the fraudulent behavior, he was terminated. He filed a claim, alleging that the chain had engaged in a defrauding scheme in violation of the FCA and other laws. The court dismissed his claim, stating that his allegations were conclusory, but it allowed him leave to amend his complaint.
Retaliation. The amended petition presented by the realtor asserted a FCA relation claim. In order to convince the court that his termination was a violation of the FCA he had to demonstrate that: (1) he had engaged in actions in furtherance of the FCA or attempted to prevent a violation of the act; and (2) as a result, he was subjected discrimination in either the terms or the conditions of his employment. The amended petition did not sufficiently persuade the court that the realtor had attempted to prevent a violation of the FCA. The relator demonstrated that his initials were used to authorize prescriptions, but did not present evidence that false claims were actually submitted. His belief alone was not enough to convince the court that his amended complaint stated a claim for relief. The court noted that the relator did not, in his opposition to the motion to dismiss, ask the court for an opportunity to amend his complaint should it be dismissed. The court noted it was not required to allow leave when the party did not petition the court, and dismissed the action with prejudice, holding that an additional attempt to amend would be pointless.
The case is No. 9:15-cv-81633-JIC.
Attorneys: John C. Spaccarotella, U.S. Attorney, for the United States. Amy Marie Wessel (Shutts, Bowen LLP) for Glades Drugs, Inc.
Companies: Glades Drugs, Inc.
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