United States District Court, D. Massachusetts
UNITED STATES OF AMERICA ex rel. JOHN KARVELAS, Plaintiff,
TUFTS SHARED SERVICES, INC. d/b/a TUFTS MEDICAL CENTER, INC. et al., Defendants.
ORDER ON MOTION TO DISMISS (DOC. NO. 31)
Sorokin United States District Judge
before the Court is a motion to dismiss brought jointly by
Defendant Tufts Medical Center (“TMC”) and
individual Defendants Leslie Lussier, Theresa Hudson-Jinks,
and Albert Fantasia. Relator John Karvelas' Complaint
alleges five counts: (1) retaliation in violation of the
False Claims Act (“FCA”), 31 U.S.C. §
3730(h) (Count I); (2) retaliation in violation of the
Massachusetts False Claims Act (“MFCA”), Mass.
Gen. Laws ch. 12 § 5J (Count II); (3) wrongful
termination in violation of public policy (Count III); (4)
retaliation against a licensed health care provider in
violation of Mass. Gen. Laws ch. 149 § 187(b) (Count
IV); and (5) breach of the implied covenant of good faith and
fair dealing (Count V). Doc. No. 20 at 27-33.
Karvelas was employed as a respiratory therapist at Tufts
Medical Center (“TMC”) in Boston, Massachusetts,
from December 2005 until November 2016. Doc. No. 20 ¶ 5.
Karvelas' claims arise out of allegations that TMC
engaged in several forms of fraudulent billing practices,
which Karvelas says violate the FCA, as well as allegedly
unlawful kickbacks. The alleged billing irregularities
include duplicative billing, id. ¶¶ 39-42,
billing for services not provided, id. ¶ 43,
unbundling of services, id. ¶¶ 44-45,
billing for services that were not reimbursable for failing
to comply with Medicare standards, id. ¶¶
46-50, and upcoding of services, id. ¶¶
51-53. Meanwhile, the alleged kickbacks relate to Tufts'
replenishment and restocking of drugs and supplies for
EasCare, an ambulatory service provider that contracted with
Tufts to bring patients to its medical center. Id.
importantly to Karvelas' five claims in this suit, he
alleges that he “raised concerns” about TMC's
allegedly fraudulent billing practices to his superiors.
Id. ¶¶ 64-67. Specifically, he alleges
that on or about October 14, 2016, he raised concerns about
“the billing of subsequent-day ventilator charges on
the same day as [an] initial charge, ” a practice he
alleges constituted “over-billing” of Medicare,
“as well as other billing concerns, to the individual
responsible for the Hospital's electronic billing
system.” Id. ¶ 65. He also alleges that
on or about October 28, 2016, he raised concerns regarding
patient safety to Defendant Theresa Hudson-Jinks, TMC's
Vice President of Patient Care Services, as well as Assistant
Director of Respiratory Care Donna Kelly, only to be
“yelled at” and for no further action to be
taken. Id. ¶¶ 66-67. He further alleges
that at some point during September and October 2016, he
“was interviewed by the [Drug Enforcement
Agency]” and went to the Office of the Inspector
General for the Department of Health and Human Services to
discuss his concerns about TMC's allegedly fraudulent
billing practices. Id. ¶¶ 77.
Additionally, Karvelas alleges that the Defendants labeled
him a “troublemaker” and ultimately terminated
his employment on November 16, 2016, in retaliation for
“his efforts to expose and reform Tuft's [sic]
fraudulent practices.” Id. ¶¶ 67-68,
80. Additionally, he alleges that he was “subjected to
repeated acts of harassment, discrimination, and
intimidation” both “[b]efore and after his
termination.” Id. ¶ 70.
turning to the merits of the pending motion, the Court notes
what is not at issue: Karvelas' suit does not
present any allegations of fraudulent billing practices or
unlawful kickbacks. Rather, his claims are limited in scope
to allegations about the circumstances of his termination
survive a motion to dismiss pursuant to Rule 12(b)(6), a
complaint “must provide fair notice to the defendants
and state a facially plausible legal claim.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12
(1st Cir. 2011). The pleader must “‘show' an
entitlement to relief” by including in the complaint
“enough factual material ‘to raise a right to
relief above the speculative level'” if the facts
alleged are accepted as true. Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007));
accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Fed.R.Civ.P. 8(a). In assessing whether a complaint
withstands a Rule 12(b)(6) challenge, courts “employ a
two-pronged approach.” Ocasio-Hernandez, 640
F.3d at 12.
statements in the complaint that amount to “threadbare
recitals of the elements of a cause of action” are
identified and disregarded. Id. (quotation marks and
brackets omitted). So, too, are “bald assertions,
subjective characterizations and legal conclusions.”
DM Research, Inc. v. Coll. of Am. Pathologists, 170
F.3d 53, 55 (1st Cir. 1999) (quotation marks omitted). As the
First Circuit has warned, such statements “are a danger
sign that the plaintiff is engaged in a fishing
expedition.” Id. “[T]he price of entry,
even to discovery, is for the plaintiff to allege a
factual predicate concrete enough to warrant further
proceedings, which may be costly and burdensome.”
Id. (emphasis in original).
“[n]on-conclusory factual allegations” are
“treated as true, even if seemingly incredible.”
Id. If such allegations “allow the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged, ” and thereby “state
a plausible, not a merely conceivable, case for relief,
” then the motion to dismiss must be denied.
Id. (quotation marks omitted); accord
Iqbal, 556 U.S. at 678. “The plausibility standard
is not akin to a ‘probability requirement,' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678
(citation omitted). “Determining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679 (citation omitted).
the Court considers Karvelas' claims against individual
Defendants Fantasia, Lussier, and Hudson-Jinks.
Claims Against the Individual Defendants
outset, the Court notes that the Complaint is devoid of any
allegations, factual or otherwise, regarding Defendant Albert
Fantasia. The Complaint simply does not plausibly state a
claim against him. Thus, the motion to dismiss is ALLOWED as
to Defendant Fantasia. The claims against Fantasia are also
DISMISSED for the reasons resulting in dismissal of all
claims against the other individual defendants.
Complaint also fails to state a claim against individual
Defendants Lussier and Hudson-Jinks. The Court now explicates
why this is so for each of the Complaint's five counts.
Count I: ...