A Chicago federal judge has agreed to drop a suburban hospital from a lawsuit brought by a doctor who claimed the hospital had submitted phony claims to Medicare, reversing his prior ruling, and saying he now sees the hospital’s alleged involvement in the alleged scheme was minimal at best and Advocate should have been dropped from the case.
The July 3 decision was laid down by U.S. District Judge John Blakey against Dr. Luay Ailabouni. The doctor had lodged a suit in 2013, amended in 2017, on behalf of the federal and Illinois state governments against several physicians and medical groups, including Cardiothoracic & Vascular Surgery Associates, and Advocate Christ Medical Center.
Ailabouni was a resident physician from 2008 to 2012 at Christ Medical Center, which is in southwest suburban Oak Lawn and is associated with the University of Illinois at Chicago College of Medicine. Ailabouni now practices in Washington state.
Ailabouni alleged physicians and their medical groups, with the knowledge of Advocate, used colleagues and physician assistants from 2006 to 2016 as assistant surgeons, rather than resident physicians, as required at teaching hospitals. In this way, physicians allegedly raked in millions of dollars in illicit money from Medicare.
Ailabouni explained the federal government already pays hospitals for running residency training programs and so Medicare does not reimburse claimants for assistant surgeon services, except when the surgeries are unusual or complicated. The surgeries in question at Advocate were generally “routine” and “non-complex,” according to Ailabouni.
According to Ailabouni, defendants allegedly “wanted the benefits of being affiliated with a teaching hospital, but did not want the responsibility or additional workload involved in actually teaching and working beside resident physicians.”
Ailabouni filed his action under the qui tam doctrine, which allows citizens with information about governmental fraud, to sue for the government and collect a portion of recovered funds.
Defendants filed motions to dismiss, some of which Judge Blakey granted April 23. However, Blakey refused to do so for Advocate and CVSA. Regarding Advocate and CVSA, Blakey concluded Ailabouni presented “viable” claims. Advocate, but not CVSA, asked Blakey to reconsider, contending its bills to Medicare were on the up-and-up.
Advocate said it is “abundantly clear” its Medicare Cost Reports “solely cover and relate to the hospital based services it renders and does not extend to CVSA’s” billings and so Advocate cannot “face liability for another party’s fraudulent billing practices.”
This issue was clarified by Ailabouni at a June 26 hearing, leaving Blakey to observe his prior ruling “cannot stand,” because he “misinterpreted” Ailabouni’s allegations.
Blakey said Advocate knew, at best, about some of CVSA’s allegedly bogus practices, but Advocates’ reports to Medicare made no false representations. Blakey added that Advocate’s mere alleged knowledge of fraud is not enough to sustain the suit against the hospital. For Ailabouni to have a case against Advocate, Ailabouni would have to be able to allege Advocate “took an active role” in submitting false claims or documents to Medicare, and such an allegation is absent, in Blakey’s view.
The suit remains pending against Cardiothoracic & Vascular Surgery Associates and physicians William M. Hopkins, Dean M. Govastis, Wade W. Kang and Sanjeev Pradhan.
Ailabouni has been represented by the Chicago firms of Siprut PC and Behn & Wyetzner, as well as by Terry Law Firm of Carson City, Nev.
Advocate Christ Medical Center has been defended by the Chicago firm of Polsinelli PC.