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Whistleblower Healthcare Fraud Lawsuit Alleges Surgical Double-Booking


. By Gordon Gibb

Not one, but two healthcare fraud lawsuits against the renowned Massachusetts General Hospital and its operator allege double-booking of surgeries that possibly put patients at risk. There are also allegations that patients are misled into assuming their procedures will be performed by experienced surgeons, when in fact residents and fellows often perform various aspects of a procedure while the primary surgeon is out of the room.

The first health care fraud lawsuit was filed by a former anesthesiologist, who brought a whistleblower qui-tam against the hospital citing violations of the False Claims Act (FCA). According to Law360 (10/20/17), the federal government had previously opted against joining the lawsuit back in February but has since joined the lawsuit originally filed in 2015 by Dr. Lisa Wollman. The Commonwealth of Massachusetts has also joined Wollman’s whistleblower lawsuit (United States of America et al v. Massachusetts General Hospital Inc. et al, Case No. 1:15-cv-11890, in the US District Court for the District of Massachusetts).

In her health care fraud lawsuit, Wollman alleges that surgeries at the hospital were routinely double-booked. In order to handle the load, various aspects of surgical procedures were performed by hospital residents and fellows without direct supervision of teaching doctors – the latter cited in Wollman’s lawsuit as a violation of Medicare rules. Wollman also claims that patients, at times, were left under anesthesia too long while waiting for teaching doctors to conclude their involvements with other procedures.

Wollman’s whistleblower qui-tam asserts that while Medicare rules allow for fellows and residents to participate in surgical procedures, the primary surgeon is required to be involved for “key and critical parts” of the procedure. And yet, alleges Wollman, several surgeries she witnessed did not benefit from the presence or involvement of a licensed surgeon at any point in the procedure, in violation of Medicare rules – or so it is alleged.

With a procedure that does involve a licensed surgeon for those key and critical aspects – and where the patient has to wait under anesthesia for the primary surgeon to transfer over from another procedure – the additional anesthesia constitutes unnecessary, excessive and dangerous prescribing, Wollman said. Her healthcare fraud lawsuit notes that anesthesia is billed in 15-minute increments, driving an allegation that a prolonged period of anesthesia while waiting for the primary surgeon, who is double-booked, is an unnecessary drain on Medicare, Medicaid, and MassHealth.

The defendant responded by putting forward a motion to have the healthcare fraud lawsuit dismissed on grounds that Medicare rules requiring the participation of primary surgeons are vague. The defendant also asserts the plaintiff has not produced specific evidence showing inappropriate billings, overlapping surgeries or specific procedures where a surgeon was not present for a key and critical aspect.

Wollman responded October 19 in federal court that in her view she has sufficiently demonstrated FCA violations from double-booked and overlapping surgical procedures without producing specific billing documents for those patients.

It should be noted that Wollman’s lawsuit is not the only litigation brought against Massachusetts General Hospital (MGH). Dr. Dennis Burke, a former orthopedic surgeon with a 35-year tenure at the hospital, brought a health care fraud and wrongful dismissal lawsuit last month alleging he was fired over the same issue: double-booking surgeries.

According to Law360 (09/11/17) Burke was a participant in an investigation by the Boston Globe’s renowned Spotlight investigative unit with regard to the issue of double-booking surgical procedures at MGH.

According to Court documents, Burke had begun raising concerns about double-booking surgeries as early as 2008. In 2012 MGH responded with new rules following an internal review, although Burke contends the revised guidelines did not go far enough to effectively curb the practice. The Spotlight unit of the Boston Globe picked up the story in 2015 with Burke as a participant. MGH responded by accusing Burke of participating in overlapping surgeries himself, an allegation Burke denied and supported by providing redacted records to the Boston Globe omitting vital patient information but leaving intact scheduling data that reflected he did not double-book.

MGH, it is alleged, cited the sharing of this information as a violation of the hospital’s confidentiality policy, and Burke was let go.

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