United States District Court, D. Utah
UNITED STATES OF AMERICA, ex rel. GERALD POLUKOFF, Plaintiff/Relator,
ST. MARK'S HOSPITAL; INTERMOUNTAIN HEALTHCARE, INC.; INTERMOUNTAIN MEDICAL CENTER; SHERMAN SORENSEN; and SORENSEN CARDIOVASCULAR GROUP; Defendants.
MEMORANDUM DECISION AND ORDER GRANTING MOTIONS TO
N. Parrish United States District Court Judge
the court are three motions to dismiss brought by (1)
Intermountain Healthcare, Inc. and Intermountain Medical
Center (collectively, IHC) [Docket 168]; (2) Doctor Sherman
Sorensen and the Sorensen Cardiovascular Group (collectively,
Dr. Sorensen) [Docket 172]; and (3) St. Mark's Hospital
[Docket 190]. The court GRANTS the motions and dismisses the
complaint with prejudice.
relator in this lawsuit, Doctor Gerald Polukoff, alleges in
his complaint that Doctor Sherman Sorenson performed
unnecessary medical procedures and then fraudulently billed
the federal government for some of these procedures. Dr.
Polukoff also alleges that two hospitals, IHC and St.
Mark's, fraudulently billed the government for costs
associated with these unnecessary procedures.
medical procedure at the heart of this case is a patent
foramen ovale (PFO) closure. The foramen ovale is a small
opening in the wall separating the two upper chambers of the
heart found in a fetus as it develops in the womb. In about
75% of the population, the opening closes soon after birth.
In the other 25% of the population, the opening never closes.
Except in rare cases, this condition is asymptomatic. But an
adult with a PFO has an increased risk of suffering a stroke
because blood clots that would otherwise have lodged in the
lungs during pulmonary circulation may instead leak through
the PFO, enter the systemic circulatory pathway, and lodge in
the brain. A PFO may be closed through a percutaneous
regarding the use of a PFO closure to prevent strokes have
varied over the past decade. In 2006, the American Heart
Association/American Stroke Association (AHA/ASA) issued
guidelines regarding the use of a PFO closure to decrease the
odds of a stroke. These guidelines stated that “PFO
closure may be considered for patients with recurring
cryptogenic stroke despite taking optimal medical
therapy.” [Docket 90, ¶ 83]. In 2011, the AHA/ASA
updated its recommendation, noting that “insufficient
data exists to make a recommendation about PFO closure in
patients with first stroke and PFO.” [Docket 90, ¶
84] ¶ 2014, the AHA/ASA updated its recommendations
again, noting that for “patients with a cryptogenic
ischemic stroke or TIA and PFO without evidence for deep vein
thrombosis (DVT) available data do not support a benefit for
PFO closure.” [Docket 90, ¶ 85]
has not issued a National Coverage Determination (NCD) for
PFO closures. [Docket 90, ¶ 91]. Thus Medicare has not
taken an official position on when it will or will not pay
for this procedure. Healthcare providers, however, must
submit a certification with any request for payment from
Medicare stating that “the services shown on this form
were medically indicated and necessary for the health of the
patient.” [Docket 90, ¶ 56] Furthermore, 42 U.S.C.
§ 1395y(a) provides that “no payment may be made .
. . for any expenses incurred for items or services . . .
which . . . are not reasonable and necessary for the
diagnosis or treatment of illness or injury or to improve the
functioning of a malformed body member.” Dr. Sorensen
performed PFO closures from December 2002 through December
2011. [Docket 90, ¶ 2]. He performed these procedures
with much greater frequency than other physicians throughout
the country. [Docket 90, ¶¶ 3, 93]. Part of the
reason that Dr. Sorensen performed more PFO closures than
other doctors is that he believed that it was best for the
patient not to wait until he or she suffered one or two
strokes before performing the procedure. [Docket 90,
¶¶ 123, 145]. Thus, Dr. Sorensen would perform PFO
closures as a preventative measure for patients who had not
yet suffered a stroke, but who had an elevated risk of a
stroke. [Docket 90, ¶¶ 123, 145]. Dr. Sorensen also
performed PFO closures to treat chronic migraines. [Docket
90, ¶¶ 137, 144].
March 30, 2011, IHC adopted internal guidelines for PFO
closures. [Docket 90, ¶ 87]. These guidelines stated
that a PFO closure may be considered for “patients with
a single well-documented significant stroke or systemic
emboli in a high risk patient who has been comprehensively
evaluated for alternative cause of embolic stroke.”
[Docket 90, ¶ 88]. The IHC guidelines required an
independent neurology consult or other tests to confirm
either the occurrence of a stroke or an embolism before
performing a PFO closure. [Docket 90, ¶ 88]. The
guidelines also provided that the procedure may only be
performed to treat migraines in a clinical trial setting.
[Docket 90, ¶ 90].
11, 2011, IHC suspended Dr. Sorensen's medical privileges
for 14 days because he had performed PFO closures that did
not conform to IHC's internal policies. [Docket 90,
¶¶ 115, 117, 119-21]. After returning from his
suspension, Dr. Sorensen again performed PFO closures that
did not comply with IHC's guidelines. [Docket 90, ¶
122] In September, 2011, IHC initiated a procedural process
to permanently suspend Dr. Sorensen's medical privileges.
IHC and Dr. Sorensen entered into a settlement agreement, but
soon thereafter, IHC notified Dr. Sorensen that he was in
violation of the agreement. After IHC threatened to suspend
him and report him to the National Practitioner Database, Dr.
Sorensen resigned from IHC. [Docket 90, ¶ 122].
Thereafter, Dr. Sorensen performed PFO closures exclusively
at St. Mark's until he retired in December, 2011.
Polukoff began working with Dr. Sorensen's practice on
August 17, 2011, shortly before Dr. Sorensen resigned his
privileges at IHC. [Docket 90, ¶ 123]. Dr. Polukoff
worked with Dr. Sorensen for about four months until Dr.
Sorensen retired in December 2011. Dr. Polukoff observed Dr.
Sorensen perform PFO closures at St. Mark's, including
procedures on patients who had not suffered a prior stroke.
Dr. Polukoff avers that Dr. Sorensen falsely stated on
medical records that the medical basis for the procedure was
a history of strokes. [Docket 90, ¶ 123]. He also claims
that Dr. Sorensen made false statements on medical records in
an attempt to disguise PFO closures as a different medical
procedure, a repair of an atrial septal defect. [Docket 90,
he was employed by Dr. Sorensen, Dr. Polukoff was looking
into the possibility of purchasing Dr. Sorensen's
practice. As part of this investigation, Dr. Polukoff
obtained billing documents and a hard drive containing
approximately eight years of billing records for Dr.
Sorensen's practice. [Docket 90, ¶ 141]. These
billing records included patient names, dates of service, and
amounts billed. These records did not include Dr.
Sorensen's medical notes. [Docket 90, ¶ 141].
Polukoff filed this qui tam lawsuit under the FCA
against Sorensen, IHC, St. Mark's, and St. Mark's
parent company, HCA, Inc. After investigating the complaint,
the government elected not to intervene in this action.
Polukoff originally filed his complaint in the Middle
District of Tennessee. A court in that district dismissed all
claims against HCA, the only party with a presence in that
district. Upon dismissing HCA from the suit, the Tennessee
district court determined that venue in the Middle District
of Tennessee was no longer proper and transferred the case to
the District of Utah. In this court, the remaining defendants
filed motions to dismiss under Rules 9(b) and 12(b)(6) of the
Federal Rules of Civil Procedure.
Dr. Polukoff's claims in this case derive from the FCA,
which was enacted during the Civil War to curb fraud against
the federal government. See Universal Health Servs., Inc.
v. United States, 136 S.Ct. 1989, 1996 (2016). Broadly
speaking, liability under the FCA requires a knowing lie to
the government in order to receive a payment that it would
not have otherwise remitted. See Id. (The FCA's
“focus remains on those who present or directly induce
the submission of false or fraudulent claims.”). The
FCA imposes penalties against any person who (1)
“knowingly presents, or causes to be presented, a false
or fraudulent claim for payment or approval”; (2)
“knowingly makes, uses, or causes to be made or used, a
false record or statement material to a false or fraudulent
claim”; (3) “knowingly makes, uses, or causes to
be made or used, a false record or statement material to an
obligation to pay or transmit money or property to the
Government, or knowingly conceals or knowingly and improperly
avoids or decreases an obligation to pay or transmit money or
property to the Government”; or (4) conspires to commit
any of these violations. 31 U.S.C. § 3729(a)(1)(A)-(C),
(G). The Act permits individuals to sue on behalf of the
government to enforce the statute. Id. §
Polukoff alleges that Dr. Sorensen violated the FCA by
performing medically unnecessary PFO closures and then
billing the government for these procedures through Medicare
and Medicaid. Dr. Polukoff also claims that IHC and St.
Mark's also fraudulently billed the government for
hospital costs associated with these procedures.
defendants have moved to dismiss the complaint on three
grounds. First, IHC argues that this court should dismiss the
complaint with prejudice because Dr. Polukoff initially filed
this case in the wrong court. Second, all of the defendants
assert that the complaint should be dismissed because Dr.
Polukoff has not pled his claims with particularity as
required by Rule 9(b). And third, all of the defendants
contend that Dr. Polukoff has failed to plead an objectively
false claim submitted to the government. The court will
address each of these arguments in turn.
argues that Dr. Polukoff's complaint should be dismissed
with prejudice because his decision to file his complaint in
the Central District of Tennessee constituted bad faith forum
shopping. This court, however, need not delve into whether
Mr. Polukoff acted in good faith or not when he chose to file
in Tennessee because IHC's argument misapplies the
relevant transfer statute.
district court's authority to transfer or dismiss a case
for improper venue is found in 28 U.S.C. § 1406(a).
Under this statute, “[t]he district court of a district
in which is filed a case laying venue in the wrong division
or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in
which it could have been brought.” This statutory
provision specifically permits the court in which the
complaint was originally filed to decide whether the
interests of justice require either dismissal or transfer. If
the original court elects to transfer a case, nothing in the
statute permits the receiving court to countermand the
original court's decision and dismiss the case, much less
dismiss the case with prejudice.
the decision of whether to transfer or dismiss Mr.
Polukoff's case rested with the Tennessee district court.
Although IHC could have addressed its argument to that court,
this court lacks statutory authority to invalidate the
Tennessee court's decision to transfer rather than
dismiss this case. Moreover, even if this court had the
authority to do so, it would exercise its discretion to
accept the transfer rather than dismiss this case with
prejudice as IHC requests.
9(b) of the Federal Rules of Civil Procedure requires that
“[i]n alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or
mistake.” Because violations of the FCA constitute a
fraud on the government, the heightened pleading requirements
of Rule 9(b) apply to actions under the Act. United
States ex rel. Sikkenga v. Regence Bluecross Blueshield of
Utah, 472 F.3d 702, 726 (10th Cir. 2006). “At a
minimum, Rule 9(b) requires ...