Attorneys in John B. Amos Cancer Center whistleblower suit spar over attorney-client privilege

An attorney representing the former top administrator of the John B. Amos Cancer Center argued Wednesday in front of U.S. District Court Judge Clay Land that Columbus Regional, the cancer center and its physicians must supply material a Columbus Regional lawyer claims is protected under attorney-client privilege.

Richard Barker alleges in a federal whistle-blower suit that the 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.

Wednesday was the first time the case reached a courtroom. Barker’s lawyer, Jamie Bennett of Ashcraft & Gerel based in Landover, Md., filed a motion to compel the defendants to produce material, which defendants claim is protected under attorney-client privilege.

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. That prompted Bennett to argue that if Columbus Regional and the other co-defendants take that path, they waive attorney-client privilege under a 1994 decision by the 11th Circuit Court of Appeals.

To prevail, Barker must prove that Columbus Regional and the other co-defendants willfully and knowingly violated the law.

Much of the two-hour hearing centered around that 20-year-old decision in what was called the “Cox case,” in which United States Steel and its pension fund were sued by union members.

Bennett argued the law was clear in the Cox decision, which reads in part, “It would be inequitable to allow USX to present evidence tending to show that it intended to comply with the law, while allowing it to cloak in privilege those documents tending to show its actions did not conform with the law.”

While Land did not make an immediate decision, he indicated that his hands were tied by the Cox ruling. At one point, the judge told Columbus Regional’s attorney, “I think you have been handed a difficult chore this morning.”

Bennett, a former assistant U.S. attorney who handles these types of cases across the country, was even more forthright. She suggested to Land that if Columbus Regional’s attorneys had information that suggested those involved in the allegations were advised their actions were legal Paulhus would have handed it to her “on a silver platter.”

Land acknowledged the significance of Bennett’s request, saying that was why he set a hearing for both sides to clarify their positions.

“The decision on this issue could have far-reaching implications on cases pending in my court,” Land said.

Land later added, “You are talking about the waiver of one of the oldest privileges under the law.”

Land questioned both Bennett and Paulhus at length about their positions, then told them he would have a decision by Aug. 29.

“There are troubling consequences as it relates to attorney-client privilege, but those consequences may be the law,” Land said.

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 receives a share of the award. The federal False Claims Act authorizes qui tam actions against parties who have defrauded the federal government. If successful, a private party in a False Claims Act qui tam action may receive up to 30 percent of the government’s award.

The federal government declined to join Barker’s suit, but Assistant U.S. Attorney Charles Byrd monitored the entire hearing Wednesday. He declined comment afterward, referring all questions to the U.S. Attorney’s Office in Macon.

Bennett said she was pleased with the direction of the hearing.

“I feel good about what happened,” she said. “It is obvious that Judge Land understands the Cox decision. Once we get a decision we can move forward.”Barker was not present at the hearing in the Federal Courthouse in downtown Columbus. No Columbus Regional executives or physicians attended the hearing.

The suit alleges that the John B. Amos Cancer Center has a long-standing practice of improper coding and billing and that its five 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.

This story was originally published August 20, 2014 at 6:33 PM with the headline "Attorneys in John B. Amos Cancer Center whistleblower suit spar over attorney-client privilege."