EDPA Denies Defendant BlueWave Healthcare Consultants’ Motion to Dismiss, Allowing Aetna’s Doctor Kickback Suit to Continue
On December 29, 2015, U.S. District Judge Robert F. Kelly of the Eastern District of Pennsylvania denied BlueWave Healthcare Consultants, Inc.’s Motion to Dismiss a lawsuit brought by Plaintiff Aetna alleging Defendants paid doctors kickbacks to order unnecessary blood tests. Aetna alleges that BlueWave referred physicians in the Aetna network and told them they would be paid to refer blood samples to Defendant Health Diagnostics Laboratory, Inc. According to Aetna, BlueWave received approximately $200 million in commissions after entering into a sales agreement with Health Diagnostics Laboratory.
BlueWave argued in its Motion that Aetna failed to allege that BlueWave said anything false, one of the elements of fraud, as well as arguing that it was not liable for fraud because it was Health Diagnostics Laboratory that submitted the false bills to Aetna. However, Judge Kelly stated that under Pennsylvania common law, a person may be liable for fraud by merely participating in the scheme. “Thus, the current Pennsylvania law places no requirement on plaintiff to prove that BlueWave defendants directly sent the false claims to Aetna,” Kelly said. “Rather, plaintiff has the burden to prove, amongst the other requirements required for fraud, that BlueWave defendants ‘participated in’ the perpetration of a fraudulent act.”