DOJ files FCA suit against neurosurgeon

A neurosurgeon in South Dakota has been served with a false claims act (“FCA”) complaint alleging violations of the anti-kickback laws. It was alleged that the doctor violated the FCA from the alleged payment of kickbacks to Asfora that were tied to devices used in spinal surgeries. Medical Designs and Sicage are medical device distributorships in South Dakota that are owned and operated by Asfora. 

The FCA is a federal statute that provides that any person who knowingly submits false claims to the government is liable to the government for the damages. Each false claim can carry a penalty up to $11,000. The anti-kickback statute is a federal fraud criminal statute that prohibits transactions intended to induce or reward referrals for items or services reimbursed by federal health care programs. The goal is to protect health care program beneficiaries from the influence of money on referral decisions and therefore guard against increased costs and poor quality services. 

The complaint alleges that Asfora, Medical Designs and Sicage engaged in multiple kickback schemes, which was designed to pay Asfora thousands of dollars in exchange for Asfora using spinal devices distributed by Medical Designs and Sicage in the doctor’s spine surgeries. The neurosurgeon allegedly received numerous complaints and warnings that the surgeries were not medically necessary with the devices in which he had a financial interest in. However, Asfora allegedly continued to perform the procedures while personally profiting from the devices sold by the medical distributorships. 

This lawsuit, United States ex rel. Bechtold, et al. v. Asfora, et al., No. 4:16-cv-04115-LLP (D.S.D.), was filed under the qui tam or whistleblower provisions of the FCA, which allow private individuals to sue on behalf of the government and receive a share of any recovery. These provisions allow the government to intervene and litigate the case. If the government does not intervene, the whistleblower may still pursue the claims on his or her own. Individuals or entities who are found to have violated the FCA are subject to treble damages and penalties.  The claims asserted against the defendants in this lawsuit are allegations only, and there has been no determination of liability.  The Court has not yet ruled on the merits of the allegations.  

Are you can individual who has knowledge of fraud being committed against the government or have knowledge of anti-kickback violations? If so, consider speaking with a FCA attorney to learn if you have a viable claim. Josh Borsellino is a Texas attorney that understands the laws surrounding the FCA, anti-kickback statute, and qui tam provisions. He offers free consultations and can be reached at 817.908.9861 or 432.242.7118. 

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