Appeals Court Approves Medical Necessity Case Alleging Unnecessary Cardiac Procedures
For most people, needing an invasive cardiac procedure may be the biggest medical ordeal of their life. We trust the surgeon we choose to make life or death decisions on our behalf. It is understood that whatever course of treatment he or she may select, it is medically necessary and in our best interests.
But what happens if the doctor is simply more interested in money? That is what a Utah physician is alleging in a recently unsealed False Claims Act case. Dr. Gerald Polukoff claims that a former colleague, Dr. Sherman Sorensen, was more interested in profits instead of his patients. He also accuses two Utah hospitals, St Mark’s and Intermountain Medical Center of turning a blind eye to the unnecessary surgeries.
According to his complaint, Sr. Polukoff claims that his former colleague, Sorensen, performed hundreds of medically unnecessary surgeries. The specific procedures at issues are Patent Foramen Ovale (PFO) and/or Atrial Septal Defect (ASD) closures.
Complaint also Names Intermountain Medical Center, St. Mark’s Hospital and HCA
He says the hospitals are equally guilty. “Both hospital defendants allowed and encouraged Dr. Sorensen to perform and submit claims to federal health benefit programs for PFO and ASD procedures despite clear compliance red flags, including, but not limited to, the fact that Dr. Sorensen was performing these procedures at a rate that far exceeded that of any other institution or physician. Dr. Sorensen performed ASD and PFO procedures at a rate that dwarfed the rest of the country by a factor of ten-to-twenty fold, making him a true ‘outlier’. The Hospital Defendants ignored obvious warnings to halt these procedures so that they could secure and maintain a lucrative stream of profitable referrals.”
Intermountain Medical Center apparently got scared and stopped Sorensen from performing these procedures but only after the complaints of other medical staff “grew too loud to ignore.”
After Sorensen was suspended by Intermountain Medical Center, Dr. Polukoff says Sorensen packed up his practice and moved to St. Mark’s Hospital. There, his suspiciously high rate of invasive cardiac procedures began anew.
St. Mark’s Hospital is part of HCA, a company with a long history of Medicare fraud troubles.
Dr. Polukoff says he has first-hand knowledge of Sorensen’s surgical practices because he [Polukoff] is an experienced cardiologist and once worked for Sorensen.
Patent Foramen Ovale (PFO) Closures
According to Dr. Polukoff, the foramen ovale is a small opening between the two upper chambers of the heart. Our bodies need that opening before we are born to properly circulate blood while we are still in the womb.
After birth, in 75% of the population, the foramen ovale opening simply closes as it is no longer needed. In the other 25% of the population, it fails to close. That is called a patent foramen ovale.
Sounds pretty dangerous right? 25% of us are walking around with a hole in our heart. According to Dr. Polukoff, it is not a big deal. The condition is almost always harmless.
Dr. Polukoff says that it is accepted in the medical community that PFOs should be left alone except in rare instances where a patient has suffered multiple strokes. Even then, experts believe that closure of the opening (cardiac surgery) is not the first option of treatment.
This brief lesson in medical care is necessary because Medicare and Medicaid only pay for treatment that is medically necessary. When it comes to PFO closures, there are specific guidelines that medical providers like Sorensen should follow.
Dr. Polukoff claims that nationally, only a few hundred PFO closures are performed each year. Considering there are 5500 hospitals in the United States, these procedures are quite rare. Yet Dr. Sorensen claims to have performed over 2500 PFO and ASD closures!
Dr. Polukoff claims that Sorensen is such a crook that on two occasions, he observed Sorensen puncture a hole between the chambers of a patient’s heart simply so he could fix it! In his own words, “Dr. Polukoff personally observed Sorensen perform medically unnecessary PFO closures at St. Mark’s. In fact, on at least two occasions Dr. Polukoff observed Sorensen create a PFO by puncture of the atrial septum in patients who were found to have an intact septum during surgery.”
If true, Sorensen belongs in prison. So does the leadership at HCA for allowing this to occur on their watch. Two other HCA hospitals were already being scrutinized for unwanted cardiac procedures. None of this should be a surprise to HCA or St. Mark’s.
Medical Necessity and the False Claims Act
The federal False Claims Act is a Civil War era law that allows private citizens with inside information about fraud to blow the whistle and collect a reward. To be eligible for the reward, federal or state healthcare dollars must be involved. That usually means Medicare, Medicaid or Tricare.
The awards are paid from whatever monies the government collects from the wrongdoers. The reward is 15% to 30% of what the wrongdoer pays to the government. Because HCA has been in so much trouble and because Sorensen’s actions endanger patient lives, we expect huge damages if Dr. Polukoff’s claims are true. Under the Act, the government can collect triple damages and penalties of over $20,000 per each falsely billed procedure.
Healthcare fraud can take many forms. We have seen cases involving billing for services not performed, overcharging and in this case, performing cardiac surgical procedures without medical necessity.
In recent years, medical necessity cases have become difficult to win. Judges and jurors don’t feel comfortable substituting their opinions for that of an experienced physician. Simply because two doctors have different opinions doesn’t mean one is guilty of fraud. It simply means that at times, reasonable minds can disagree.
In this case a federal judge in Utah tossed Dr. Polukoff’s claim. The trial judge took the rather extreme position that a “medical judgment cannot be false under the False Claims Act.” In other words, when there is a difference of opinion, the courts won’t get involved and call one fraudulent.
That of course leads to the ridiculous statistical anomaly like in this case. Do we believe that folks in Utah have more holes in their heart needing surgery than the rest of the county combined?
In July, a three judge panel of the United States Court of Appeals reversed the trial court decision. They said that there was no “bright-line rule that a medical judgment can never serve as the basis for an FCA claim.”
The court also ruled that simply because Sorensen said the surgeries were “reasonable and necessary” doesn’t mean anything if his opinions do not conform to the government’s definition of “reasonable and necessary.”
The ruling means that the case can proceed against Sorensen, Intermountain Medical Center, St Mark’s Hospital and St. Mark’s parent, HCA.
December 2018 Update: After losing at the Court of Appeals, the defendants asked the court to put the case hold while they could appeal again, this time to the Supreme Court. This case is already over 6 years old. On December 10th, Magistrate Judge Evelyn Furse denied their motion and said the case should proceed. That doesn’t mean that the hospital and other can’t appeal but it does mean that the whistleblower’s day in court won’t be delayed by another year.
Call for Medicare Fraud Whistleblowers
Anyone who thinks Medicare fraud is a victimless crime need only read the complaint filed by Dr. Polukoff. Assuming he is correct, thousands of patients needlessly suffered pain and unnecessary disruption of their lives. We don’t know if anyone died during surgery, but poking holes in someone’s heart simply so you can fix the hole and bill Medicare is barbaric and dangerous. It elevates corporate greed to a new level.
The Appeals Court decision does not mean any of the defendants have been found guilty of any wrongdoing. But it does indicate there is enough merit for the case to proceed. Ultimately a jury will decide if the case doesn’t first settle.
Healthcare whistleblowers are the new American heroes. They save lives and save tax dollars. They help stop greed and fraud.
If you have inside information about medically unnecessary surgeries or medical treatments, call us. Although these cases are difficult, they are not impossible to win. And the rewards can be in the millions of dollars.
To be a whistleblower you must have inside knowledge of fraud involving taxpayer funded healthcare. [In California and Illinois, whistleblower awards are available for fraud involving private health insurance.]
You also must be the first to file. That means if you want an award, don’t sit on the fence.
To learn more, visit our Medicare fraud whistleblower information page. Have questions or want to see if you have a case? We welcome your call. We can be reached online, by email or by phone (414) 704-6731 (direct).
All inquiries are protected by the attorney – client privilege and kept strictly confidential. You never need to pay us unless we win and collect money on your behalf. And our initial consultations are without any obligation.