We’re only one-third of the way through the month of November, but we already have a winner of November’s Generality-in-Pleading Award.  The hands-down winner is Dr. Warren Troxler, whose False Claims Act whistleblower suit against his former employer, Warren Clinic, was thrown out of court last Wednesday for failure to state a cause of action.

The dismissal was not on the basis of Rule 9(b), which requires that allegations of fraud be made with “particularity.”  Dr. Troxler didn’t get that far.  He couldn’t pass the basic “plausibility” standard of Rule 12(b)(6).

How does a complaint fail that badly?  Dr. Troxler accused the clinic of allowing nurses to obtain and record the HPIs (for history of present illness) of patients.  To his mind, that had to be illegal. His legal authority?  HHS’s Evaluation & Management Services Guide.  But there were two problems with that line of reasoning.  First, the Guide doesn’t say that nurses can’t obtain HPIs.  It just doesn’t say they can.  Second, page one of the Guide says, with underlining, “this is not a legal document and does not . . . impose obligations.”

And where were the false claims that the clinic allegedly filed?  Dr. Troxler couldn’t point to any particular one.  So he relied on the clinic’s annual certification of Medicare compliance.  He reasoned that the clinic must have failed to comply at some point during the year, and that being the case, the certification was false.  The court was not impressed.

The case is U.S. ex rel. Troxler v. Warren Clinic, 2014 BL 312924 (N.D. Okla.).