Illinois District Court Denies Summary Judgment for FCA Claims Based Solely On Expert Testimony Regarding Medical Necessity
On January 4, 2011, in United States ex rel. Turner et al.v. Michaelis Jackson & Associates, L.L.C. et al., a district court in the Southern District of Illinois denied a defendant’s motion for summary judgment in a False Claims Act case which involves the issue of whether certain ophthalmology procedures performed by the defendant were medically necessary. The court was not persuaded by the lay testimony provided by the relators on the issue of medical necessity, and held that the relator’s testimony that the defendant performed “true” procedures only 5% of the time he billed for it did not present a genuine issue of material fact under the False Claims Act. In arriving at this conclusion, the court noted that the use of probability as the backbone to a False Claims Act suit has been denounced by the Seventh Circuit. The court was influenced, however, by the detailed expert testimony presented by the relator on the issue of medical necessity and held that the expert testimony was sufficient to create a material issue of fact for trial and withstand summary judgment.