Today’s riddle:  Why would a federal court approve a medical device manufacturer’s practice of persuading physicians to exaggerate the period of time Medicare patients need their devices?  The answer is so simple that you’ll be embarrassed that you didn’t get it right away.

Whistleblower Jeffrey Bierman didn’t get it, either.  So he spent the better part of a decade pursuing a qui tam case against Orthofix International, a manufacturer of bone-stimulator devices.  Jeff proved that Orthofix persuaded nearly all the physicians who use its devices to certify to Medicare that the patient—every patient—needs the device for a full nine months.  And nine months just happens to be the useful life of the device.

Slam dunk case, right?  Wrong.  The flaw in Jeff’s case—and the answer to our riddle—is that the patient buys the device rather than renting it.  So Medicare doesn’t pay any more for a device used for nine months than for a device used for one month.  And if Medicare doesn’t pay more, there’s no false claim.  And if there’s no false claim, then Jeff doesn’t have a case.

That’s why Judge Zobel of the District Court for Massachusetts gave Orthofix summary judgment on April 11.

The case is U.S. ex rel. Bierman v. Orthofix International, no. 1:05-cv-10557 (D. Mass. 2016).