Saying that the attorney-client privilege is important but not sacrosanct, a U.S. District Court judge ordered Columbus Regional Healthcare System to provide communications with its attorneys related to allegations of wrongdoing at the John B. Amos Cancer Center.
In a carefully worded 11-page order that was issued Friday morning, Judge Clay Land ruled that Columbus Regional had waived its right to the protection of attorney-client material and has seven days to produce a schedule to produce it.
The ruling is a setback for Columbus Regional, whose attorneys argued in a hearing last week in front of Land it should not be required to produce the material it claimed was protected.
“Sometimes, however, there are interests that outweigh the values supporting this important privilege, and exceptions to the attorney-client privilege have been made under those limited circumstances,” Land wrote.
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Former John B. Amos Cancer Center top administrator Richard Barker alleges in a federal whistle-blower suit that the cancer center and its physicians — including well-respected Medical Director Andrew Pippas — repeatedly and knowingly overbilled government insurers.
Barker, who has been on administrative leave since June 2013, made the claims in a wide-ranging and detailed lawsuit under the Federal False Claims Act — also known as a qui tam action — in May 2012 in U.S. District Court, Middle District of Georgia.
The defendants are Columbus Regional Healthcare System, The Medical Center, the John B. Amos Cancer Center and Regional Oncology LLC, Dr. Thomas “Jack” Tidwell and the Columbus Radiation Oncology Treatment Center. The suit remained under seal until June 2013 when the defendants were informed of Barker’s allegations.
The suit is still in its discovery stage and no trial date has been set.
Nathan Peak, one of Barker’s attorneys with Ashcraft & Gerel based in Landover, Md., said he was pleased with the ruling.
Discovery should move pretty quickly from here, in our opinion,” Peak said. “We look forward to advancing the case.”
Land said that Barker’s claims can be divided into three broad categories:
Claims arising from Columbus Regional’s purchase of the Tidwell Cancer Center. Barker alleges that Columbus Regional purchased the Tidwell Cancer Center for more than fair market value to induce Tidwell to refer patients to Columbus Regional.
Claims arising from pay agreements between Columbus Regional and an independent corporation called Radiation Oncology of Columbus. Barker contends that this arrangement violates the federal Anti-Kickback Statute and the Stark Law.
Claims arising from charges submitted for payment by employees of the John B. Amos Cancer Center. According to the suit, Columbus Regional had remuneration relationships with Radiation Oncology that violated the Anti-Kickback Statute and the Stark Law because the agreements, including physician compensation arrangements, were not commercially reasonable and were designed to induce referrals to Columbus Regional.
To prevail, Barker must prove that Columbus Regional and the other co-defendants willfully and knowingly violated the law.
During the hearing, Columbus Regional attorney Michael E. Paulhus, of King & Spalding in Atlanta, indicated the defendants plan to use a “good faith defense,” in which they argue their clients didn’t knowingly violate the law.
“The employer took the position that its conduct was lawful,” Land wrote in his order. “The district court found that by taking this position, the employer waived the attorney-client privilege.”
On Friday, Paulhus declined to discuss specifics of the ruling, saying they appreciated Land’s consideration of the matter.
The whistle-blower suit is complex litigation in which a private party — in this case Barker — brings a suit on the government’s behalf. The government, not the private party, is considered the real plaintiff. If the government succeeds, the private party could receive up to 30 percent of the award.
The federal government declined to join Barker’s suit, but Assistant U.S. Attorney Charles Byrd monitored the entire hearing last week.
The suit alleges that the John B. Amos Cancer Center has a long-standing practice of improper coding and billing and that five of its physicians working for Regional Oncology LLC “systematically” overcharged Medicare, Medicaid, TRICARE/CHAMPUS and the Federal Employee Health Benefits Program and “reaped” potentially millions of dollars of unearned fees.
The physicians filed bills for office visits at levels that were not supported by the documentation in the medical record and filed bills for services that were included within the reimbursement for the administration of chemotherapy and thus were not separately billable, the suit claims.
The suit also alleges that the $10.5 million Columbus Regional paid Tidwell for his cancer center in 2010 was an overpayment designed to secure referrals for Columbus Regional. The purchase was in violation of two federal laws — The Stark Law and federal Anti-Kickback Statute — according to the suit.
The Stark Law prohibits physician referrals of designated health services for Medicare and Medicaid patients if the physician has a financial relationship with that entity. The federal Anti-Kickback Statute prohibits the payment, in any form, whether direct or indirect, made in part or in whole to induce or reward the referral or generation of federal health care business.