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United States ex rel. Barker v. Tidwell

United States District Court, M.D. Georgia, Columbus Division

June 3, 2015

UNITED STATES OF AMERICA ex rel. RICHARD BARKER, et al., Plaintiffs,
v.
THOMAS J. TIDWELL, et al., Defendants.

ORDER

CLAY D. LAND, Chief District Judge.

In this qui tam action, Relator Richard Barker alleges that Defendant Thomas J. Tidwell submitted false claims to the United States and Georgia in violation of the federal False Claims Act, 31 U.S.C. §§ 3729-3733 and the Georgia Medicaid False Claims Act, O.C.G.A. §§ 49-4-168 to 168.6. First, Barker contends that Dr. Tidwell submitted Medicare and Medicaid claims for intensity modulated radiation therapy ("IMRT") even though the treatment Dr. Tidwell provided to his patients was not IMRT. Second, Barker argues that Dr. Tidwell falsely certified that he was in compliance with the Anti-Kickback Statute to get his Medicare and Medicaid claims paid even though he violated the Anti-Kickback Statute. Third, Barker asserts that Dr. Tidwell violated the Stark Law, which prohibits Medicare claims for services furnished at a treatment facility pursuant to referrals from a physician who has a financial relationship with the facility.

Dr. Tidwell argues that there is no evidence that he knowingly submitted any false claims, and he seeks summary judgment on all of Barker's claims against him. As discussed below, there is a genuine fact dispute on whether Dr. Tidwell knowingly submitted false claims in connection with his IMRT billings. There is also a genuine fact dispute on whether Dr. Tidwell knowingly violated the Anti-Kickback Statute. Therefore, Dr. Tidwell's summary judgment motion (ECF No. 80) as to those claims is denied. Dr. Tidwell's summary judgment motion as to Barker's Stark Law claim, however, is granted because Dr. Tidwell presented evidence that his services were provided pursuant to a consultation exception to the Stark Law, and Barker did not present any evidence to create a genuine fact dispute on this point.

SUMMARY JUDGMENT STANDARD

Summary judgment may be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.

FACTUAL BACKGROUND

Viewed in the light most favorable to Barker, the record reveals the following.

Dr. Tidwell is a radiation oncologist. He owned the Tidwell Cancer Treatment Center, a free-standing radiation oncology clinic in Columbus, Georgia. His wife, Eve Tidwell, managed the Treatment Center. In 2002, the Treatment Center purchased "DynART" radiation oncology equipment from a company called 3-D Line. 3-D Line told the Tidwells that DynART performed intensity modulated radiation therapy and that DynART satisfied the requirements for billing IMRT under Medicare.[1] Tidwell Decl. ¶ 4, ECF No. 83. The DynART system used treatment planning software, and the Tidwells installed updates over the years to keep the system current. Id. ¶ 5. The Treatment Center billed Medicare and Medicaid for IMRT based on treatment provided to patients using the DynART system. In 2006, 2008, 2010, and 2011, the Treatment Center's billing practices were audited by external auditors. Id. ¶¶ 6-8, 10. The auditors did not raise any concerns about the fact that the Treatment Center billed Medicare and Medicaid for IMRT based on treatment provided using the DynART system. Id.

Evidence does exist, however, which, if believed, arguably contradicts the Tidwells' contention that they believed the DynART system performed IMRT. For example, when a company called Oncology Solutions evaluated the Treatment Center's equipment in 2010, it found that the Treatment Center's equipment was not "competitive with current standard-of-care models" and would need to be replaced. Pl.'s Resp. to Def.'s Mot. for Summ. J. Ex. 10, Mem. from Jake A. Jones III to Donald E. Elder (June 24, 2010), ECF No. 95-11; Pl.'s Resp. to Def.'s Mot. for Summ. J. Ex. 7, Email from Eve Tidwell to Matt Sherer (Jan. 31, 2011), ECF No. 95-8 (acknowledging that others had concluded that it was malpractice to treat patients using the Treatment Center's equipment); see also Pl.'s Resp. to Def.'s Mot. for Summ. J. Ex. 11, Chisela Report (Jan. 2, 2013), ECF No. 95-12 (finding that the Treatment Center's equipment was "not capable of supporting radiation treatment of cancer patients to meet minimum acceptable standards of care"). Given this conflicting evidence, the Court finds that a genuine factual dispute exists as to whether the Tidwells believed that the DynART system performed IMRT.

In 2010, Columbus Regional Healthcare System purchased the Treatment Center for $10.5 million. After the purchase, Dr. Tidwell continued to treat patients at the Treatment Center, and Mrs. Tidwell continued to work at the Treatment Center. Barker contends that Columbus Regional paid more than the fair market value for the Treatment Center so that Columbus Regional would receive referrals from Dr. Tidwell and so that Dr. Tidwell's patients would not be referred to Columbus Regional's competitors. See Tidwell Dep. 46:16-47:5, ECF No. 85 (explaining that Mrs. Tidwell told Columbus Regional it would "lose a hell of a lot of money if they didn't buy" the Treatment Center because if Columbus Regional's competitor bought or opened its own cancer center, any patient referrals would be to the competitor and not to Columbus Regional).

The Tidwells assert that they believed that $10.5 million was a reasonable price for the Treatment Center. In support of this position, the Tidwells point out that their accountant advised them in 2009 not to sell the Treatment Center for less than $12 million, and in 2010 another free-standing radiation oncology clinic in Georgia sold for $18 million. Tidwell Decl. ¶ 15. But there is also evidence that the Treatment Center was not worth $10.5 million in 2010. It is undisputed that a valuation firm placed the "high end" value of the Treatment Center at $10 million. See also Tidwell Dep. 45:16-19 ("I wouldn't do anything with the Medical Center for less than 500, 000 more than whatever our appraisal is because they have been such pains in our asses for so many years."). In addition, Barker pointed to evidence that the Treatment Center's equipment was out of date and needed to be replaced. Pl.'s Resp. to Def.'s Mot. for Summ. J. Ex. 10, Mem. from Jake A. Jones III to Donald E. Elder (June 24, 2010), ECF No. 95-11.

DISCUSSION

The False Claims Act and the Georgia Medicaid False Claims Act prohibit fraud against government programs. Both statutes impose liability on any person who "knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval." 31 U.S.C. § 3729(a)(1)(A); accord O.C.G.A. § 49-4-168.1. Under both statutes, the term "knowingly" means that "a person, with respect to information-(i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or ...


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