UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ex rel. Lokesh Vuyyuru, M.D., and individually ]
Plaintiffs, ]
vs. ] Civil Action No. 3:06cv180
] SECOND AMENDED
Gopinath Jadhav, M.D., ] COMPLAINT
and ] (Correcting
Identity of Proper Parties)
Southside Gastroenterology Associates, Ltd. ]
and ]
Petersburg Hospital
Company, LLC ]
Serve Registered Agent: ]
B. Page Gravely, Jr., Esq. ]
Glen
and ]
The Cameron
Foundation, ]
a
Serve Registered Agent: ]
Samuel P. Johnson, III ]
43 Rives Rd ]
and ]
Columbia/HCA John Randolph, Inc. ]
Defendants. ]
Plaintiffs,
United States of
JURISDICTION AND PARTIES
1.
Plaintiffs in this action are the
2.
Lokesh Vuyyuru, M.D., (referred to herein as “Vuyyuru”
or “Relator”) is a citizen of the
3. Lokesh Vuyyuru, M.D. brings this action on behalf of the United States of America pursuant to 31 USCA § 3730(b)(1) and 31 USCA § 3732(a).
4. Lokesh Vuyyuru, M.D. brings this action under 28 U.S.C.A. § 1331.
5. Defendant
Gopinath Jadhav, M.D (“Jadhav”) is a
Gastroenterologist in the
6.
Defendant The
Cameron Foundation, a
7.
Defendant Columbia/HCA
John Randolph, Inc. is a
8.
As required under the False Claims Act, 31 U.S.C. §
3730(b)(2), the Relator has provided the Attorney General of the United States
and the United States Attorney for the Eastern District of Virginia, Richmond
Division with a statement of all material evidence and information related to
the complaint. This disclosure statement
supports the existence of charging for improper and fraudulent medical
procedures and the reliance by the
9.
This court has jurisdiction over this matter pursuant
to 28 U.S.C.A. § 1331, 31 U.S.C. §§ 3730(b) and 3732(a) in that the claims for
relief in this action are brought in the name of the
10. Venue is proper under 31 U.S.C.A. § 3732 in that defendants reside in this judicial district, the acts complained of occurred within this jurisdiction.
FACTS
11. Lokesh Vuyyuru, M.D. is a medical physician, board certified in Gastroenterology and previously in Internal medicine as well, who was at various times herein licensed in the Commonwealth of Virginia.
12. Relator
became director of Gastroenterology at
13. Relator
was a member of the committee for Gastroenterology at
14. From
on or about 1997 to 2003, Relator was a member of the department of medicine at
15. From
on or about 2000 to 2002, Relator was the investigating committee member for
peer review at
16. From
on or about 1998 through 2003, Relator was a member of the endoscopy committee
at
17. Relator leaned that Dr. Jadhav while performing colonoscopies routinely took a biopsy of the Valvula Bauhini also known as Ileocecal Valve (“IC Valve”) with a stated impression of “lipoma,” when he was unable to find a polyp. This practice continued through March 2005, and was reflected in medical records and actually observed by medical staff including but not limited to nurses Betsy Jernigan, Beverly Horton, Florence Challis and Donna Newmyer.
18. The IC-Valve always has an appearance similar to lipoma, which is a normal condition.
19. Further, lipoma is a benign disease, which does not require any biopsy.
20. Dr. Jadhav conspired with SRMC and JRMC to perform the unnecessary medical procedures with the purpose of charging Medicaid and Medicare as well as private insurance companies for the unnecessary medical procedure for the sole purpose of enhancing his income and that of SRMC and JRMC.
21. As another example of the systematic practice of performing unnecessary medical procedures with the purpose of charging Medicaid and Medicare for the unnecessary medical procedures for the sole purpose of enhancing his income and that of SRMC and JRMC, Dr. Jadhav treated a 74 year old black female who was unable to swallow, had stopped eating and was unable to swallow barium. Under the circumstances, such a patient was clearly in need of an Esophago Gastro Duodonoscopy (“EGD”) with Percutaneous Endoscopic Gastrostomy (“PEG”) tube placement. Under such circumstances, it is medically unnecessary to perform an EGD with biopsy one day followed by PEG tube placement the following day. By performing the procedures on two separate days, Dr. Jadhav is able to bill for two procedures at a higher rate than if he performed the EDG with PEG tube placement which is all that is medically necessary.
22. As another example of the systematic practice of performing unnecessary medical procedures with the purpose of charging Medicaid and Medicare for the unnecessary medical procedures for the sole purpose of enhancing his income and that of SRMC and JRMC, on 11/28/2001, Dr. Jadhav performed a colonoscopy on a 65 year old female without conclusive results. The following day, Dr. Jadhav performed an EGD with BICAP cautery. Notwithstanding in less than six months, Dr. Jadhav performed another colonscopy and biopsied the IC-Valve, a wholly unnecessary procedure coupled with the fraudulent and medically unnecessary biopsy of the IC-Valve.
23. As another example of the systematic practice of performing unnecessary medical procedures with the purpose of charging Medicaid and Medicare for the unnecessary medical procedures for the sole purpose of enhancing his income and that of SRMC and JRMC, on 7/11/97, Dr. Jadhav performed an upper endoscopy on a 72 year old female and found benign gastric polyps. However, without any medical justification and completely unnecessarily, in just over one month he repeated an upper endoscopy making the same findings.
24. As another example of the systematic practice of performing unnecessary medical procedures with the purpose of charging Medicaid and Medicare for the unnecessary medical procedures for the sole purpose of enhancing his income and that of SRMC and JRMC, on 11/27/2001, Dr. Jadhav performed a colonoscopy on a 72 year old female finding among other things, acute ischemic colitis involving the left colon and transverse colon.. Notwithstanding the findings, on the very same day Dr. Jadhav performed an EGD with biopsy, which was an unnecessary medical procedure. Further, 13 days later, Dr. Jadhav performed yet another colonoscopy with biopsy which was wholly medically unnecessary.
25. As another example of the systematic practice of performing unnecessary medical procedures with the purpose of charging Medicaid and Medicare for the unnecessary medical procedures for the sole purpose of enhancing his income and that of SRMC and JRMC, on 12/14/1999, Dr. Jadhav performed a colonocopy on a 71 year old female and diagnosed her with, inter alia, acute colitis. However in 20 days, Dr. Jadhav repeated the colonoscopy, which was wholly medically unnecessary.
26. The medically unnecessary procedures by Dr. Jadhav generated not only additional income for Dr. Jadhav but for SRMC and JRMC.
27. Additionally, Dr. Jadhav frequently billed for the procedure of a colonoscopy and upper-endoscopy when Dr. Jadhav failed to complete the procedure. The time expended by Dr. Jadhav for a colonoscopy were at times less than five minutes and for a upper-endoscopy less than three minutes, when to properly perform such a procedure more time would be required and further by failing to examine the colon thoroughly he would not observe the lesions, polyps and cancer, which was discovered by Relator when he reviewed the charts and performed a subsequent workup upon the patients. Despite being confronted with the results of the investigation by the Relator, his practice was modified for only a short duration before he returned to the improper and fraudulent methods. JRMC and SRMC knew or should have known of the fact that the procedures were not being performed but were being billed and also billed for the procedures as completed procedures when the procedures were incomplete.
28. Medicaid is a federally assisted grant program for the states. Medicaid enables the states to provide medical assistance and related services to needy individuals. The Health Care Financing Administration (“HCFA”), administers Medicaid on the federal level. Within broad federal rules, however, each state decides who is eligible for Medicaid, the services covered, payment levels for services and administrative and operation procedures. The state directly reimburses physicians and medical facilities for services covered, with the state obtaining the federal share of the payment from accounts which draw on funds of the United States Treasury. 42 C.F.R. §§ 430.00 to 430.25. The Federal share of each state’s Medicaid program varies state by State.
29. The
30. At all times relevant to this Complaint, the United States provided funds to the Commonwealth of Virginia, DMAS through the Medicaid program, pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. Enrolled providers of medical services to Medicaid recipients are eligible for reimbursement for covered medical services under the provisions of Title XIX of the 1965 Amendments to the Federal Social Security Act. By becoming a participating provider in Medicaid, enrolled providers agree to abide by the rules, regulations, Policies and procedures governing reimbursement, and to keep and allow access to records and information required by Medicaid. In order to receive Medicaid funds, enrolled providers, together with authorized agents, employees and contractors, are required to abide by all the provisions of the Social Security Act, the regulations promulgated under the Act, and all applicable Policies and procedures issued by the Commonwealth of Virginia, DMAS.
31. Among the rules and regulations which enrolled providers agree to follow are, inter alia: (a) bill DMAS for any of the covered services or items which are medically necessary; (b) neither bill DMAS for any services or items which were not performed or delivered in accordance with all applicable policies, nor submit false or inaccurate information to DMAS relating to provider costs or services; (c) not engage in any act or omission that constitutes or results in over utilization of services; (d) comply with state and federal statutes, policies and regulations applicable to Medicaid program; and (e) not engage in any illegal activities related to the furnishing of services to recipients.
32. At all times relevant to the complaint, defendants were participating Medicaid and Medicare providers, and submitted claims to Medicaid and Medicare for the biopsies of the Ileocecal Valve (“IC Valve”), and other fraudulent billings. Further, upon information and belief, defendants further defrauded the United States of America by similar charges and billings to CHAMPUS, and insurance, MCO’s and HMO’s funded by Medicaid, including but not limited to Health Keepers[1] Plus, Virginia Premier, CareNet of Southern Health, Sentara Medicaid Program and Optimum Choice.
33. Defendant Dr. Jadhav for a period of nearly 10 years failed to dictate the required consult note before billing, making minor notations only in the chart, while billing for a level 3 to 5 consult. At SRMC (different than his practice at JRMC) that Dr. Jadhav routinely and in most cases did not provide a dictation for consults and failed to perform general multi-system examinations failing to follow CMS guidelines since 1997 for which he billed or caused to be billed to the United States Government as though the CMS guidelines were being met.
34. Defendants
charged or caused to be charged the
35. Defendants knowingly or willfully made or cause to be made false statement or representation of material fact in applications for payment under the Medicare program by billing for the medical procedures related to the biopsy of the IC Valve.
36. On or about 2001, the Relator, with knowledge that it was a violation of federal law to knowingly or willfully make or cause to be made any false statement or representation of material fact in any application for payment under the Medicare program, informed Dr. Jadhav, SRMC and JRMC that the routine biopsy of the IC Valve was fraudulent, illegal and improper activities.
37. Nevertheless, defendants continued their practice and conspired to injure the reputation of Relator by injurious and fraudulent manipulation of the peer review process, by suspending medical privileges and by filing complaints with the Virginia Board of Medicine.
38. Lokesh
Vuyyuru, M.D. leaned that certain fraudulent practices were occurring at
39. In and about December 2001, the Chief of Staff from SRMC offered to Relator that if he kept silent with regard to the ongoing Medicare/Medicaid fraud that “They will make you rich” which Relator rejected. Later, another member of the Medical Staff for SRMC threatened Relator that if he did not back off, SRMC would hurt some of Relator’s friends. Eventually, SRMC conspired and did do injury to Relator by bring spurious charges to remove Relator’s hospital privileges and by filing charges against Relator with the Virginia Board of Medicine.
40. Lokesh
Vuyyuru, M.D. is as was an “original source” of the information describing the
fraudulent practices under the statute for reporting false claims against the
41. Following Lokesh Vuyyuru, M.D.’s objections and disclosures to government authorities, he has been subjected to intolerable, insulting, damaging and discriminatory treatment.
42. At all times material to this Complaint, the defendants knew or were grossly negligent or reckless in not knowing that routine biopsy of the IC valve was medically unnecessary, fraudulent and billing Medicare for this procedure was illegal and improper.
43. On information and belief, defendants knowingly, as that term is defined by 31 U.S.C. § 3729(b), filed, or caused to be filed, with the federal government applications for the payment of United States’ government funds, and on information and belief, caused moneys of the United States government to be paid, to themselves Millions of Dollars when the submission of such claims for payments was knowingly fraudulent and part of a scheme to be paid for unnecessary medical procedures.
44. As a result of the retaliation, Dr. Vuyyuru has suffered substantial damage to his reputation, his business and profession, loss past and future income, legal expenses, expense associated with protecting his family for fear of physical and emotional violence and harm, distress, embarrassment, humiliation, fear, anxiety and stress, pre and post judgment interest.
FIRST CLAIM
Violation of 31 U.S.C. § 3729(a)(1)
45. The Relator repeats the allegations of paragraphs 1 - 44 contained in this Complaint.
46. On information and belief, defendants knowingly presented, or caused to be presented and filed, a false or fraudulent claim for payment or approval with the United States Government.
47. Defendants had actual knowledge of the information, acted in deliberate ignorance of the truth or falsity of the information or acted in reckless disregard of the truth or falsity of the information.
48. By reason of the violation of 31 U.S.C. §
3729(a)(1) defendants have knowingly or recklessly damaged the
SECOND CLAIM
Violation of 31 U.S.C. § 3729(a)(2)
49. The Relator repeats the allegations of paragraphs 1 - 44 contained in this Complaint.
50. On information and belief, defendants knowingly made used or caused to be made or used a false record or statement to get a false or fraudulent claim paid or approved by the Government.
51. By
reason of the violation of 31 U.S.C. § 3729(a)(2) defendants have knowingly or
recklessly damaged the
THIRD CLAIM
Violation of 31 U.S.C. § 3729(a)(3)
52. The Relator repeats the allegations of paragraphs 1 - 44 contained in this Complaint.
53. The defendants in performing the acts set forth above, conspired to defraud the United States government in violation of 31 U.S.C. § 3729(a)(3) by getting false or fraudulent claims allowed or paid to the damage of the United States’ government.
FOURTH CLAIM
ACTION UNDER VIRGINIA COMMONLAW
54. Dr. Vuyyuru repeats the allegations of paragraphs 1 - 44 contained in this Complaint.
55. The defendants in performing the acts set forth above conspired to and did unlawfully retaliate against Dr. Vuyyuru proximately causing injury, damage and losses to Dr. Vuyyuru.
FIFTH CLAIM
ACTION UNDER
§ 18.2-500 FOR VIOLATION OF § 18.2-499
56. The Relator repeats the allegations of paragraphs 1 - 44 contained in this Complaint.
57. Under
§ 18.2-500. (Effective January 1, 2006) Same; civil relief; damages and counsel fees; injunctions
A. Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefore and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff's counsel, and without limiting the generality of the term, "damages" shall include loss of profits.
B. Whenever a person shall duly file a civil action in the circuit court of any county or city against any person alleging violations of the provisions of § 18.2-499 and praying that such party defendant be restrained and enjoined from continuing the acts complained of, such court shall have jurisdiction to hear and determine the issues involved, to issue injunctions pendente lite and permanent injunctions and to decree damages and costs of suit, including reasonable counsel fees to complainants' and defendants' counsel.
58. Virginia Code § 18.2-499, provides in pertinent part as follows:
§ 18.2-499. Combinations to injure others in their reputation, trade, business or profession; rights of employees.
A. Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever or (ii) willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act, shall be jointly and severally guilty of a Class 1 misdemeanor. Such punishment shall be in addition to any civil relief recoverable under § 18.2-500.
B. Any person who attempts to procure the participation, cooperation, agreement or other assistance of any one or more persons to enter into any combination, association, agreement, mutual understanding or concert prohibited in subsection A of this section shall be guilty of a violation of this section and subject to the same penalties set out in subsection A.
59. Defendants acted with malice and without good faith.
60. Defendants violated § 18.2-499 of the Code of Virginia, as amended, proximately causing damages to plaintiff Dr. Vuyyuru.
PRAYER FOR RELIEF
WHEREFORE,
plaintiffs,
A. In an amount, presently indeterminable, on the claims stated herein for violation of 31 U.S.C. § 3729(a)(1), (2) and (3) sum duly trebled in addition to a fine of not less than $5,000 per violation and not more than $10,000 together with attorneys’ fees and costs;
B. With respect to Counts Four and Five, plaintiff, Lokesh Vuyyuru, M.D. complains and moves for judgment against the defendants, jointly and severally, in the amount of $95,000,000.00 plus treble damages (count five), pre and post judgment interest, costs, attorney fees (count five) as well as punitive and exemplary damages, jointly and severally, or such other and greater amount as the law deems appropriate.
C. In addition, plaintiff prays for costs, attorneys’ fees, pre and post judgment interest and such further and additional relief at law or in equity that this Court may deem appropriate or proper.
Jury Demand
Plaintiffs
ex rel. Lokesh Vuyyuru, M.D., and individually.
By:__________________________
Counsel
Certificate
of Service
I hereby certify that on this 29th day of August, 2006 I caused a true and accurate copy of the foregoing to be served on the following opposing counsel/party and the United States Attorney General as indicated below:
[] via facsimile [x] via U.S. Mail [] via hand
Robert
L. Harris, Jr., Esquire
Charles
M. Sims, Esquire
Anne
Glenn, Esquire
LeClair Ryan, a Professional Corporation
The
(804)
545-1505
(804)
545-1501 f
(Counsel
for Gopinath Jadhav, M.D. and Southside Gastroenterology Associates, Ltd.)
[] via facsimile [x] via U.S. Mail [] via hand
Michael
R. Shebelskie, Esq.
Rita
Davis, Esq.
Hunton & Williams, LLP
(804)
788-8200
(804)
788-8218
(Counsel
for Community Health Systems Professional Services, Inc. and for
Petersburg Hospital Company, LLC)
[] via facsimile [x] via U.S. Mail [] via hand
COLUMBIA/HCA
John Randolph, Inc.
via registered Agent CT Corporation System
Glenn
[] via facsimile [x] via U.S. Mail [] via hand
The Cameron
Foundation,
a
as the properly identified party in lieu of
via
registered agent:
Samuel P. Johnson, III, Esq.
43 Rives Rd
[] via facsimile [x] via U.S. Mail [] via hand
Tara
Casey, Assistant
Paul
McNulty, USAG
Eastern
District of Virginia
(804)
819-5400
(804) 771-2316 f