Dr. Franklin Cockerill claims he felt intimidated by the Mayo Clinic

Dr. Franklin Cockerill (Mayo Medical Labs)

Dr. Franklin Cockerill (Mayo Medical Labs)

Dr. Franklin Cockerill, Chief Laboratory Officer of Quest Diagnostics, responded to the lawsuit filed against him by the Mayo Clinic and claimed he felt intimidated by CEO Dr. John Noseworthy and feared Mayo would retaliate against him and his family.

Readers will recall Dr. Cockerill, who was chairman of the Mayo Clinic Department of Laboratory Medicine and Pathology and chief of Mayo Medical Laboratories (MML) until September 30, 2014, left Mayo to work for Quest. Soon after, Mayo sued Dr. Cockerill and alleged, among other things, he misappropriated and shared Mayo’s trade secrets with Quest.  Please see this post for more details on the lawsuit.

Mayo requested, and was granted, a temporary restraining order that prevented Dr. Cockerill from starting his new position with Quest.  In response, Dr. Cockerill filed a motion with the court that requested he be allowed to begin his new job, and an affidavit that presented his version of the events that transpired during his last few months at Mayo.

For reasons that are not yet clear, Dr. Cockerill withdrew both the motion and the affidavit the day after they were filed.  This all transpired more than a week ago, but I have not written about it until now because I was trying to get a copy of the court filings so I could have a better understanding of Dr. Cockerill’s perspective.

The Rochester Post-Bulletin has a copy of the affidavit, and I asked the reporter who wrote about it for a copy, but he never responded.  So unfortunately, all I have to go on is what is in his article.

The affidavit reportedly called the restraining order “draconian” and inappropriate, and argued the restrictions placed on Dr. Cockerill are against Minnesota law.

Dr. Cockerill claimed Mayo approached him about taking early retirement, but a Mayo spokesperson told the Post-Tribune that claim is “completely false”.

[Read more…]

Florida laboratory kickback scheme results in two arrests

DOJ

David Brock Lovelace, Vice President of Cornerstone Health Specialists, and Dale DuBois, managing member of Healthcare Marketing Florida LLC, were arrested last week and charged with conspiracy to defraud Medicare and paying illegal kickbacks for clinical laboratory testing referrals.

Unfortunately, I do not know much more than what is available in this short Department of Justice press release, as the case is so new the complaint is not yet publicly available.  I will try to find out more information when it becomes available.

Mr. Lovelace, 44, and Mr. DuBois, 61, are accused of paying cash kickbacks to medical clinics in Miami Florida in exchange for DNA samples and patient information.  They would then sell these to unnamed clinical laboratories, which would bill Medicare for clinical laboratory services.  In the last 14 months, Mr. Lovelace reportedly received $675,000 from just one clinical laboratory.

The press release does not say whether the labs actually performed any testing on the samples or simply just billed Medicare as if they had, nor does it say whether the labs are also targets in the investigation.

This is not Mr. Lovelace’s first tango with the feds.  Just six moths ago, a federal grand jury indicted him on charges of health care fraud and money laundering.  As part of his bond agreement, he was ordered “not to commit crimes or engage in any occupation relating to the health care services industry”.

Mr. Lovelace is scheduled to appear before US District Judge Thomas McCoun III in Tampa at 11 am today.

I can’t find much out about Mr. DuBois, other than the Florida Department of State website shows he formed Healthcare Marketing Florida LLC in June 2014 under the name “Dale H. DuBois”.  According to the press release, however, the man arrested is named “Dale B. DuBois”.

At this point it is not clear which name is correct.

$125,000 settlement reached against forensic pathologist Dr. Norman Thiersch

Dr. Norman Thiersch (Herald of Everett Washington)

Dr. Norman Thiersch (Herald of Everett Washington)

Snohomish County death investigator Deborah Hollis has reached a $125,000 settlement with county authorities in a lawsuit that accused Snohomish County Washington Medical Examiner Dr. Norman Thiersch of sexual discrimination, failure to accommodate her diabetes, retaliation, and splashing her with blood during autopsies.  In addition to the financial award, Ms. Hollis will keep her job at the Medical Examiner’s office and will be sent to Texas for “forensics training”.

Ms. Hollis filed her lawsuit, which initially demanded $750,000 in damages, in December 2013, but it did not come to public light (at least that I saw) until late September 2014, when Dr. Thiersch’s resignation was announced.

Overall, Dr. Thiersch reportedly enjoyed a good reputation with law enforcement and prosecuting attorneys during his 16 year tenure in Snohomish County, but there were several issues in recent years that called his leadership into question.

One such issue was the 2012 death of a 7 year old developmentally disabled boy, the investigation of which was “hampered” by Dr. Thiersch’s office, according to law enforcement.

Despite multiple requests from law enforcement for an autopsy, Dr. Thiersch’s office refused.  Post-mortem toxicology later showed the child died of a salicylate overdose, but by then the body had already been cremated.

The boy’s parents initially told police they had not given their son any medications the night before he died, but police later learned the mother told a friend she had indeed given her son aspirin.

In September 2013, a lawsuit filed by former death investigator Shannon Impett that alleged retaliation, sexual harassment, a hostile work environment, gender discrimination, and failing to accommodate her disability was settled for $495,000.

After Ms. Hollis filed her suit in December 2013, the county stripped Dr. Thiersch of his day-to-day administrative responsibilities and is now looking to divide the administrative and scientific components of the job permanently.

Pathology researcher sues anonymous PubPeer.com commenters for defamatory comments

Fazlul Sarkar, PhD (Cancer Therapy)

Fazlul Sarkar, PhD (Cancer Therapy)

Fazlul Sarkar, PhD, has filed a lawsuit against anonymous commenters on the website PubPeer.com (the owners/webmasters of which are also anonymous), alleging comments submitted to the site about his research were false and defamatory and led to the loss of a job offer at the University of Mississippi and loss of tenure at Wayne State University.

Facts/Allegations

The complaint starts with a description of Dr. Sarkar’s 35 year career as a pathology researcher, which, from all outward appearances, has been a very productive one:

  • Over 430 peer-reviewed journal article publications
  • Over 100 review articles and book chapters
  • Editor of several books
  • Sits on editorial board of several journals
  • Tenured professor at Wayne State University
  • $12.8 million in National Institutes of Health (NIH) funding (according to Retraction Watch)

For undisclosed reasons, Dr. Sarkar endeavored to get a job at the University of Mississippi and was offered an employment contract on March 11, 2014 that included academic appointments in two departments, tenure, $350,000 salary, $15,000 in relocation expenses, two labs, two offices, a research team, a start-up package of $750,000, and a couple of other things.

[Read more…]

Laboratory whistleblower Chris Riedel sued by different laboratory whistleblowers

gavel

A US district judge in New Jersey recently denied a motion to dismiss filed by laboratory whistleblower Chris Riedel of Hunter Laboratories in a lawsuit brought against him by laboratory whistleblowers Fair Laboratory Practices Associates (FLPA) and NPT Associates (NPT).

I only just now came across the suit, which was originally filed in April 2014, but it is still interesting nonetheless and far from being resolved.

The Parties

FLPA and NPT are separate general partnerships formed in Delaware solely for the purpose of bringing qui tam (whistleblower) actions.

FLPA

FLPA is composed of general partners Andrew Baker, Richard Michaelson, and Mark Bibi, the former CEO, CFO and general counsel, respectively, of Unilab, a clinical laboratory that was purchased by Quest Diagnostics in 2003.

FLPA filed a qui tam against Quest and Unilab in 2005, alleging they engaged in a “pull-through” scheme where they charged some of their customers/clients below market rates in exchange for Medicare/Medicaid referrals.  Quest moved to have the case thrown out on the grounds that Mr. Bibi, who used to be general counsel for Unilab, was ethically precluded from blowing the whistle on a former client.

FLPA argued Mr. Bibi’s client was Unilab, a laboratory that no longer exists, and not Quest, and he is therefore able to sue Quest.

[Read more…]

Appeals court reverses $1.5 million organ incineration award

Scales of Justice

A Florida appeals court has reversed the final judgment of a lower court that awarded $1.5 million to the daughter of a woman whose organs were incinerated after autopsy.

I first wrote about this case on September 10, 2012, right after the original verdict was announced, and then again nine days later after a local news report raised some interesting questions about the case.

Background

Ms. Sharren Sutka died on March 27, 2005* at Winter Haven Hospital in Winter Haven Florida.  Her daughter, Brandy Kay Liles, who stated in a 2006 article she was concerned her mother may have received an inadvertent morphine overdose while in the hospital, requested an autopsy.

Dr. Phillip Gordon, a partner at Ridge Pathology Consultants, performed the autopsy.  After the autopsy, Dr. Gordon placed Ms. Sutka’s organs in a red biohazard bag and turned the bag over to the hospital, which incinerated the organs.

Ms. Sutka’s body (sans organs) was released to the funeral home and she was buried on April 7, 2005.

In his final autopsy report that was released on April 18, 2005, Dr. Gordon opined the cause of Ms. Sutka’s death was:

…respiratory arrest, secondary to desquamative interstitial pnuemonia, with pulmonary hemorrhage, possibly complicated by sleep apnea and morbid obesity, DIP, secondary to smoking.

Ms. Liles was apparently not happy with the results of the autopsy, and inquired at the funeral home about performing a second autopsy.  The funeral home told her her mother’s organs had not been sent with the body.  When Ms. Liles asked the hospital about her mother’s organs, the hospital told her they had been incinerated.

This angered Ms. Liles, who stated she could not get a second autopsy, nor could she respect her mother’s last wish, which was to be buried and not cremated, because the organs were incinerated.

She subsequently filed suit against Dr. Gordon, Ridge Pathology Consultants and Winter Haven Hospital alleging intentional infliction of emotional distress (tort of outrage), and conspiracy.  She also alleged vicarious liability against Ridge Pathology and Winter Haven Hospital for Dr. Gordon’s actions.

[Read more…]

Cigna sues Health Diagnostic Laboratory for fee-forgiving fraud

HDL logo

Health insurance provider Cigna has filed suit against Health Diagnostic Laboratory (HDL), alleging HDL unlawfully obtained at least $84 million from it through a “fraudulent fee-forgiving scheme”.

Readers will recall HDL is one of the laboratories being investigated by the Office of the Inspector General (OIG) for the Department of Health and Human Services for possibly paying kickbacks to physicians in exchange for referrals. Not soon after that fact came to light, the HDL CEO, Tonya Mallory, resigned.

Allegations

Cigna states one of its responsibilities is to control health care costs for its benefit plans.  It accomplishes this in part by offering incentives to its members to use providers that are in Cigna’s network, who generally charge lower rates than out-of-network providers.

If a member chooses to utilize an out-of-network provider, Cigna requires that member to pay a higher portion of the costs than it would if an in-network provider were used.

HDL, which is not in Cigna’s network, allegedly:

…lures patients from health plans that are administered or insured by Cigna by misrepresenting those patients’ responsibilities under the plans, by promising not to collect any co-payment, co-insurance or deductible obligation, and by further promising not to seek reimbursement for any other portion of its bill that the plan does not cover. HDL then misleadingly bills the plans themselves at exorbitant and unjustified “phantom” rates—rates that misrepresent what HDL actually intended to collect.

Cigna explains that because no member is paying anything for HDL’s services, its members have “no incentive to moderate their demand for HDL’s services or to consider the higher costs of any particular out-of-network service” and this leads to higher costs for the entire plan.

CignaNot only that, but Cigna states fee-forgiveness undermines the insurance industry as a whole, as members will preferentially use out-of-network providers, for whose services they are charged nothing, rather than in-network providers, whose services require the member to pay something.  This would lead fewer providers to join insurance networks, which would make health care more expensive overall.

Cigna argues the American Medical Association, the federal government and the courts have long recognized fee forgiveness as a form of medical billing fraud.

Cigna also accuses HDL of encouraging physicians to order “a litany of medical tests, regardless of whether the provider believes such tests are needed to diagnose or treat the patient”, and also of paying kickbacks to physicians in exchange for referrals (the OIG investigation).

The complaint states HDL did not disclose its fee forgiveness program to Cigna, and that it only became aware of the existence of the program when it came across patient flyers and brochures that explain the program.  Cigna then began investigating HDL by sending questionnaires to Cigna members who utilized HDL.

The 27 responses it received confirmed Cigna members were not paying anything for HDL’s services.  In addition, Cigna claims the members relayed false information provided to them by their physicians and HDL about HDL’s billing practices and Cigna’s policy.

When Cigna confronted HDL about its billing practices, then-CEO Tonya Mallory assured Cigna that HDL will not engage in fee forgiveness as “a general practice” and that all claims forms submitted to Cigna will reflect “the actual charge for the services(s) provided.”

Causes of Action

  • Claim for Overpayments Under ERISA
  • Unjust Enrichment
  • Fraud
  • Negligent Misrepresentation
  • Tortious Interference with Contract
  • Claim for Unfair and Deceptive Business Practices Under Connecticut’s Unfair Trade Practices Act and Unfair Insurance Practices Act
  • Declaratory Relief

Jury Demand

Cigna is asking for a jury trial for all non-ERISA claims.

Prayer for Relief

  • A declaration that the products and services provided by HDL do not constitute covered services under the employee health and welfare benefit plans administered or insured by Cigna and that HDL is not entitled to receive any payments on the claims for reimbursement that it has submitted or may submit in the future as part of the fee-forgiving practices
  • Return of any all monies paid to HDL on claims for reimbursement submitted by HDL
  • Monetary, exemplary and punitive damages
  • Pre- and post-judgement interest
  • Court costs and attorney fees

The full complaint is here.

Mayo Clinic sues Dr. Franklin Cockerill, Chief Laboratory Officer of Quest Diagnostics

mayo

A couple of weeks ago, I briefly mentioned how Dr. Franklin Cockerill, former chairman of the Mayo Clinic Department of Laboratory Medicine and Pathology (DLMP) and chief of Mayo Medical Laboratories (MML), started his new job as vice president and Chief Laboratory Officer of Quest Diagnostics on October 1, 2014.  On October 14, 2014, the Mayo Clinic filed a civil lawsuit against Dr. Cockerill that alleges, among other things, misappropriation of trade secrets.

Facts/Allegations

The complaint provides a synopsis of Dr. Cockerill’s “critical” role as chairman of the DLMP, which is acknowledged as “one of the most important departments” at the Mayo Clinic, and as the head of MML.  As a result, Dr. Cockerill gained:

…intimate first-hand knowledge of MML’s and DLMP’s most sensitive confidential information concerning short-term and long-term business, marketing, sales, pricing and data management strategies, as well as market assessments and analysis, competitive analysis, test development and launch plans, and related patent protection and litigation analysis.

Dr. Cockerill also:

…has detailed knowledge of tests that MML and DLMP have developed and abandoned and/or not developed, those that have good profit margins and those that don’t…

and

…confidential information about essentially every strategic decision that MML and DLMP has made for the past seven or more years and about every strategic decision facing MML and DLMP in the immediate future.

The complaint then goes on to highlight the Business Confidentiality Policy and Code of Conduct all Mayo Clinic employees are required to follow.  These documents contain a definition of, and a mandate to protect, Mayo’s Confidential Business Information. [Read more…]

Bostwick Laboratories settles whistleblower suit for $6.05 million

Bostwick-Laboratories-sign

Bostwick Laboratories (BL) has settled the federal qui tam (whistleblower) lawsuit filed by Michael Daugherty of LabMD that alleged False Claims Act violations for $6.048 million.  This settlement does not resolve allegations against Dr. David Bostwick, who is a separate defendant in the case.

I first wrote about this case in January 2013, when Senior District Judge Arthur Spiegel denied BL’s motion to dismiss, and again in May 2014 to simply provide a quick update on where the case stood.

Briefly, Mr. Daugherty alleged BL and Dr. Bostwick (from my previous post):

  1. Routinely (not on a case by case basis) perform fluorescent in-situ hybridization (FISH) testing on atypical urine cytology cases regardless of whether the referring clinician requested FISH testing and then bills the government for the tests; and
  2. Perform other tests of dubious necessity without a physician order and also bills those to government payors; and
  3. Perform both the professional and technical components of FISH testing, but allow the referring physicians to bill for the professional component; and
  4. Charge referring physicians a reduced amount for the FISH technical component, which allows the referring physicians to mark up and bill Medicare for the full amount, and pocket the difference.

[Read more…]

Quest Diagnostics, LabCorp accused of duplicative testing, billing in recently unsealed suit

Quest

A former phlebotomist for Quest Diagnostics filed a qui tam (whistleblower) suit on July 27, 2012, alleging her former employer and LabCorp knowingly submitted “false and fraudulent claims to the United States and the State of California…for the same tests, performed on the same day, on the same patient” since at least 2002.  The suit was unsealed on October 6th, 2014 after a US District judge denied the federal government’s motion for a fifth extension of time to consider whether it would intervene in the suit.

Complaint

According to the complaint, Elisa Martinez was hired by Quest to work as a phlebotomist at its patient service center (PSC) in Red Bluff California.  She was placed on leave under the Family and Medical Leave Act for undisclosed reasons in February 2011 and was terminated in June 2011.

Just before she advances her allegations, Ms. Martinez highlights the fact Quest paid $302 million in 2009 and Quest and LabCorp paid $241 million and $49.5 million, respectively, in 2011 to settle fraud allegations.

She then provides four examples in which Quest received orders from different physicians to perform the same tests on the same patient and instead of merely sending the results of one set of tests to the ordering physicians, allegedly performed duplicate blood and urine testing and billed Medicare twice.

In one case, Ms. Martinez says a phlebotomist poured urine from one specimen cup into a second cup so as to facilitate the duplicate testing.

[Read more…]