The trial considered a unique medical strategy of using chelation therapy to treat conditions like high blood pressure, fatigue, headaches, and stomach problems, according to the U.S. Department of Justice. But the problem for the Georgia physician was that the Federal Drug Administration only recognizes chelation therapy as a treatment for lead poisoning and lead encephalopathy, and Medicare does not cover payments for non-approved drug uses. And so, according to the Justice Department, the Georgia physician falsely claimed to Medicare that his patients suffered from heavy metal poisoning.

According to pre-trial defense filings, a key argument from the physician was that Medicare paid for chelation claims for eight years with no review or audit. This lack of review or audit, according to the physician defendant, meant that use of chelation therapy was not “material” in the eyes of Medicare. The jury, it appears, disagreed with that argument. The government’s counter to the defense’s materiality argument, from pre-trial filings, was testimony about how claims are automatically processed by Medicare and how claims are selected for audit. The government argued that even though Medicare paid chelation claims for eight years without asking questions, the medical use causing chelation therapy was still material to Medicare’s decision whether to pay the claims. The jury, it appears, agreed with the government’s view.

The crux of the case, it appears, was that the physician submitted chelation therapy claims to Medicare with false diagnosis codes indicating lead toxicity in order to get the claims paid, when in fact the physician was treating patients for routine ailments such as high blood pressure, fatigue, and headaches, and not for lead toxicity. The false diagnosis codes submitted to Medicare likely took this case from an instance of mere overpayment to knowing false claims. This case serves as a good reminder to healthcare providers that Medicare claims must be factually true, and including false codes to ensure payment is a recipe for False Claims Act litigation.

The case is also a good reminder of the penalties associated with False Claims Act litigation. Here, the jury identified $1.1 million in improper Medicare payments for chelation therapy flowing from 4,400 false claims. Under the False Claims Act, the $1.1 million is statutorily trebled by the court, and then penalties for each false claim are assessed. For claims prior to 2015, when the statute was amended to increase the per-claim penalties, the minimum penalty is $5,500 per false claim. That means that the Georgia physician is now likely to see the court impose a judgment of at least $27.5 million: $3.3 million in trebled false claims and $24.2 million in penalties.

This is the second False Claims Act trial win for the Justice Department in 2023. The first trial, a six-week endeavor by DOJ in an intervened qui tam in Minnesota federal court, resulted in a judgment of approximately $490 million. You can read more about that trial here. Contact Jonathan Porter or your Husch Blackwell attorney with questions about False Claims Act investigations and litigation, or about Medicare coverage questions.

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