Benaissa v. Trinity Health et al

MOTION to Dismiss for Failure to State a Claim

D.N.D.December 21, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA WESTERN DIVISION UNITED STATES OF AMERICA, ex rel. RAFIK BENAISSA, M.D., Relator-Plaintiff; v. TRINITY HEALTH; TRINITY HOSPITAL; TRINITY KENMARE COMMUNITY HOSPITAL; and TRINITY HOSPITAL-ST. JOSEPH’S, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 4:15-cv-00159 Hon. Daniel L. Hovland Magistrate Judge Charles S. Miller, Jr. DEFENDANTS’ MOTION TO DISMISS RELATOR’S AMENDED COMPLAINT Pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6), Defendants Trinity Health, Trinity Hospital, Trinity Kenmare Community Hospital, and Trinity Hospital-St. Joseph’s (collectively, “Trinity” or “Defendants”) respectfully move this Court to dismiss the Amended Complaint filed by Plaintiff-Relator Rafik Benaissa (“Dr. Benaissa”). Dr. Benaissa alleges that Trinity violated 31 U.S.C. §§ 3729(a)(1)(A), 3729(a)(1)(B), 3729(a)(1)(C), and 3729(a)(1)(G) of the False Claims Act (“FCA”) based on allegations that certain Trinity physicians performed medically unnecessary procedures; one Trinity physician upcoded physician consulting visits; and Trinity compensated certain physicians excessively in order to induce referrals in violation of the Anti-Kickback Statute and Stark Law. Dr. Benaissa also alleges that Trinity chose not to renew his contract in retaliation against him for complaining about the alleged FCA violations, in violation of 31 U.S.C. § 3730(h). Case 4:15-cv-00159-DLH-CSM Document 37 Filed 12/21/16 Page 1 of 3 2 The Amended Complaint fails to plead FCA claims with the plausibility and particularity required by Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6) and the law of this Circuit. Specifically, the Amended Complaint fails to plead the falsity of any claim for payment allegedly made in connection with any of the three vague schemes alleged. Further, the Amended Complaint fails to identify even a single representative claim that Trinity allegedly presented to the government for payment in connection with any of the alleged schemes. For these reasons, and for the reasons outlined more fully in the accompanying memorandum of law, the Amended Complaint fails to state a claim upon which relief can be granted and should be dismissed in its entirety. Because allowing further amendment would be futile, dismissal should be with prejudice. Respectfully submitted, /s/ Brian D. Roark Brian. D. Roark (admitted pro hac vice) Molly K. Ruberg (admitted pro hac vice) BASS, BERRY & SIMS PLC 150 Third Avenue South, Suite 2800 Nashville, TN 37201 T: (615) 742-6200 F: (615) 742-6293 Attorneys for Defendants Case 4:15-cv-00159-DLH-CSM Document 37 Filed 12/21/16 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on this 21st day of December, 2016, a copy of the foregoing Motion to Dismiss was filed electronically pursuant to the Court’s CM/ECF system. Notice of this filing will be sent pursuant to all counsel of record by the Notice of Electronic Filing generated by the CM/ECF system. /s/ Brian D. Roark Case 4:15-cv-00159-DLH-CSM Document 37 Filed 12/21/16 Page 3 of 3