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Boston Scientific Counter-claims Against Whistleblowers May Stand…for now.

Whistleblowers Wendy Bahsen and Carolina Fuentes, brought a case against Boston Scientific Corporation’s Neuromodulation subsidiary (“BS”) in 2011. They filed the qui tam suit, under seal, in a New Jersey Federal Court, asking various state and federal government agencies to intervene on their behalf.

After investigations the Feds and 27 named states chose not to intervene. Undeterred, the whistleblowers amended their complaint and proceeded on their own.

Until now, the question of “what do I do when I think my employer is doing something illegal?” was a tricky one…but after the recent ruling by Federal Court Judge Susan Wigenton it just got a lot more complicated.

The two whistleblowers in this case worked for BS in the billing department in 2009. According to their complaint, while they were working at BS, they began to notice some unlawful behavior going on at the mega-corporation. Apparently, they brought the unlawful conduct to the attention of their employer and were summarily fired (though BS allegedly gives other, non-retaliatory reasons for the terminations).

They filed suit under the Federal False Claims Act (FCA), in Federal Court, under seal…meaning that BS was not given notice of the suit, while various government agencies investigated, deciding whether or not they would take over the suit on the whistleblowers (or ‘realtors’) behalf.

The suit alleged that BS violated the FCA by filing claims with Medicare and Medicaid for reimbursement of the Precision PlusTM Spinal Cord Stimulation System, which the FDA approved in 2004 for the treatment of intractable back and low back pain, including failed back surgery syndrome, and leg pain. In March, 2011, the suit was unsealed when the Feds decided not to intervene. In April, 2011, the 27 States identified in the complaint also decided not to intervene and one month later, the suit on behalf of Maryland was dismissed with prejudice. The whistleblowers proceeded without government intervention, filing an amended complaint in September, 2012. According to the allegations in the revised complaint, BSNC violated the FCA by, inter alia, (1) submitting claims without a determination of “medical necessity” by a physician; (2) falsifying diagnosis codes on reimbursement forms and falsely certifying the truthfulness of the forms; (3) promoting the System for off-label uses, including for urinary incontinence and phantom limb pain; (4) providing free reimbursement services and other “inducements” and “kickbacks” to physicians; and (5) concealing defective equipment and withholding adverse event information from the FDA.

We will discuss BS’ response in the next article.

Meanwhile, if you have information that your employer is engaged in unlawful activity, contact our offices at (877)789-9707 or use the Contact Form on our website to schedule a free consultation today.