Surgical Procedures Upcoding Fraud Attorneys

Nolan Auerbach & White are experienced Hospital Fraud Attorneys helping courageous whistleblowers.

Device manufacturers have been accused of coaching healthcare providers to submit upcoded claim forms to Medicare in conjunction with the procedures for which their devices are intended. When such claims are submitted, the procedure is characterized as more complex, thus triggering a higher reimbursement rate.

For instance, kyphoplasty, a procedure used to treat certain kinds of spinal fractures usually caused by osteoporosis, can often be performed as outpatient procedures, and is reflected in INTERQUAL as such. Kyphon, a company that had been acquired by Medtronic Spine in 2007, allegedly advised hospitals to do inpatient kyphoplasties to bulk up their Medicare payments even though the procedures could have often been done on an outpatient basis. The hospitals involved in a related recent nationwide investigation (with accompanying settlements) kept patients in the hospital as inpatients with the result of larger payments from Medicare.

More recently, in February 2014, the United States recovered approximately $5.25 million from medical device manufacturer EndoGastric Solutions, Inc. EndoGastric Solutions manufactures and sells a device called EsophyX that is intended to treat gastroesophageal reflux disease. The device was developed as an alternative to a more invasive procedure that requires incisions in the abdomen. The government alleged that EndoGastric Solutions knowingly caused health care providers to bill for the less invasive EsophyX procedure using codes applicable to the more invasive procedure, which provided for a higher level of reimbursement. As a result, federal health care programs allegedly paid more than they should have for the procedures using EsophyX.

The government also alleged that EndoGastric Solutions knowingly paid illegal remuneration to certain physicians for participating in patient seminars and co-marketing agreements to induce them to use EsophyX, in violation of the Federal Anti-Kickback Statute.

Kathleen Hawkins

Dignity Health
$37 million

Kathleen Hawkins, RN MSN, had been employed by Defendant, Catholic Healthcare West (CHW) for approximately 6 years when she decided she had had enough of trying to change the hospital system from within.

CHW, a California not-for-profit corporation that operated hospitals in California, Arizona, and Nevada, was at the time the eighth largest hospital system in the nation and the largest not-for-profit hospital provider in California.


Joe Strom

Johnson & Johnson
$184 Million

Joe Strom contacted us in 2005. We were very grateful that he did. We immediately formed an all-star legal team and a process to stop a very harmful pharmaceutical marketing strategy. It was this process we set into motion that ultimately returned hundreds of millions of dollars to the U.S. Treasury, and a portion of that, very well-deserved, into Joe’s bank account.

Joe told us a very troubling story about the off-label promotion of a pharmaceutical drug for patients who already suffered from chronic heart failure.


Bruce A. Moilan Sr.

$27 Million

Bruce Moilan was a seasoned hospital systems expert by the time he contacted our Firm. At the time he decided to file his qui tam lawsuit, he was employed by South Texas Health System as a System Director for Materials Management. In this position, he oversaw $24 million in annual purchases of supplies and equipment and helped determine budget, reduction and cost analysis throughout the contract bidding and negotiations process. His job was to insure proper implementation for purchasing, receiving and management of inventory, for McAllen Hospitals, L.P.


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