Judge is 'appalled' and 'embarrassed' by government's whistleblower case against ManorCare
Updated: A federal magistrate judge says the government’s whistleblower case against HCR ManorCare Inc. is a “huge waste of money” that rests on testimony from an expert witness with an “utter lack of credibility.”
U.S. Magistrate Judge Theresa Carroll Buchanan of Alexandria, Virginia, struck the expert’s report and deposition testimony last week, the National Law Journal (sub. req.) reports.
Buchanan said the expert was late in disclosing her handwritten patient notes, which were “in certain material respects inconsistent” with her opinion in the expert report.
Buchanan also ordered the U.S. Justice Department to pay legal fees in connection with a motion seeking sanctions for the late disclosure. She did not dismiss the case, however.
The case contends that ManorCare, a skilled nursing provider, submitted claims for medically unnecessary rehabilitation services to Medicare and the health-care program for service members, according to this 2015 press release. The expert blasted by Buchanan had reviewed the medical necessity of rehabilitation provided to a sampling of patients and found unneeded therapy was widespread.
The National Law Journal obtained a transcript of last week’s hearing. “I don’t think this case should have ever been brought,” Buchanan said. “I have looked at this stuff, and I’m appalled, I’m embarrassed, I’m ashamed that the Department of Justice would rely on this kind of nonsense by a nurse reviewer to get involved in a qui tam case and cost these defendants millions of dollars in legal fees.”
Justice Department lawyers have said they asked the expert for her notes, but she misunderstood what they meant. When the government learned the notes existed, it quickly took steps to produce them, the government said in court papers.
Government lawyers said in a footnote in a legal filing (PDF) that they would likely appeal Buchanan’s decision. But on Wednesday, they moved to abandon the case, the National Law Journal (sub. req.) reports.
Court records indicate ManorCare does not intend to seek fees or expenses from the government as part of the deal to end the case, according to the National Law Journal report. Lawyers for the whistleblowers plan to contest the agreement.
Updated on Nov. 10 to report that the Justice Department moved to abandon the case.
