A judge who recently questioned the validity of testimony provided by DaVita employees in a whistleblower case over alleged Medicare fraud has decided to unseal court records in the seven-year-old case.
U.S. District Senior Judge Charles Pannell, Jr. rejected arguments by attorneys representing DaVita that information about the cost and dosage amounts of prescription drugs administered to dialysis patients was competitively sensitive, even information that dated back a decade.
Attorneys representing a former medical director and a former nurse who worked at DaVita dialysis clinics in Georgia sought to make the information publicly available, arguing it is a key part of their federal fraud claims.
The case was filed under the federal False Claims Act in 2007 on behalf of Dr. Alon J. Vainer, a board-certified nephrologist who was medical director for several of DaVita's dialysis clinics, and Daniel Barbir, a registered nurse who worked as a Cumming clinic director.
The two former employees claim in their suit that, for years, DaVita systematically defrauded Medicare, Medicaid and civilian medical programs for the U.S. departments of Veterans Affairs and Defense of hundreds of millions of dollars. They contend that DaVita boosted its profits by prescribing and billing the federal government for vials of drugs that were larger than the smaller doses actually administered to patients, in effect generating revenues by billing for amounts that were wasted.
In an order issued Monday, Pannell rejected some arguments that DaVita lawyers from Atlanta's Bondurant, Mixson & Elmore made at a Friday hearing
to bar public access to DaVita's information. Defense lawyers had argued that while data in the documents might be old, the analyses and thought processes associated with internal memos and reports, particularly involving pricing and dosages, may still be in use at DaVita and could prove useful to its competitors.
“The court finds that financial analysis and thought processes that took place more than five years ago‹even if the same methodology may be in use today is not good cause to file the documents under seal," Pannell held.
Noting that DaVita lawyers may have been allowed to file some of the documents in question under seal by U.S. Magistrate Judge Justin Anand, who has presided over a number of pretrial issues in the case, Pannell said, "That fact is neither a justification to support further sealing to be used by the defendants nor an invitation to the relators to retroactively review the documents that have been sealed via prior orders of this court."
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