Lessons from an ASC Healthcare Whistleblower Lawsuit
Allegations of wrongful termination are common and can have an enormous impact on an organization.
The lawsuit sited in this case study describes how the employer provided opportunity for the individual to make credible allegations they were a whistleblower, subjected to retaliation and wrongful termination. These cases are expensive, distract leadership, time consuming, and have a deleterious impact on a business’s public image. That said, strong human capital management infrastructure, business practices, systems, and well-trained teams can reduce the likelihood and severity of these types of litigation.
Below, we analyzed the details of this case to identify what occurred and provide recommendations on how businesses can mitigate similar risks.
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ASC Employee Alleges Wrongful Termination
Recently, David Schwartz, a former pharmacy director of a Dallas hospital, claimed in a lawsuit filed on June 8, 2021 that he was fired for airing concerns that an affiliated surgery center was fraudulently overbilling state and federal payers.
The defendants in the case are Dallas-based USP Texas and North Central Surgical Center, which were Mr. Schwartz's joint employers. The defendants decided to build an outpatient surgery center—known as an ambulatory surgery center (ASC)—in the same building as the hospital. Mr. Schwartz was tasked by his employers with “implementing the ASC.”
The defendants filed an application with Texas Health and Human Services—the agency responsible for administering the state’s health care system—for the ASC to be categorized and allowed to bill as a hospital outpatient department (HOPD). This would have entitled the center to bill third-party payers at a higher reimbursement rate. However, the center was only granted a license to operate as an ASC, meaning it could only bill at a lower rate.
In June 2018, the hospital's CEO and associate chief nursing officer told Mr. Schwartz that the surgery center would operate as a HOPD, despite the denial of the HOPD application, according to court documents. The defendants allegedly created medical and pharmacy billing systems that “comingled” operations of the ASC with those of the hospital, so the ASC could bill for services at the higher reimbursement rate. Mr. Schwartz said he informed the defendants that the comingling would result in commercial payers, federal Medicare and Medicaid, and state Medicaid being overcharged, which would be committing fraud against both the federal government and the state of Texas.
Shortly after this conversation, Mr. Schwartz said he was falsely accused of taking drugs from the hospital and later placed on administrative leave. The accusation was based on him taking a Tylenol tablet from the employee-designated medicine cache to relieve a headache, as authorized by standard practice, according to court documents. Mr. Schwartz’s employment was later terminated.
Mr. Schwartz claimed that he was terminated “as a retaliatory adverse action” meant to punish him for his opposition to the alleged scheme. He is seeking damages, interest, attorneys’ fees, and costs for the alleged unlawful acts.
Recommendation on Limiting Probability and Cost of Retaliation Litigation
There are dozens of HR and Management process that can be designed to meet business needs and mitigate litigation risks. The following recommendations are directly related to this specific case.
Mr. Schwartz alleged he informed the ASC of billing impropriety. If an Ethics Line and Internal Investigation Program were in place, the concern over billing impropriety could have surfaced early and been delt with impartially. Ethics Lines should produce a historical record of every call or email received and how it was managed.
Ethics Line Training
Including 2-4 minutes of regular training on the use of the Ethics Line program is also recommended. Promoting the use of an Ethics Line Program is inconsistent with an employer being accused of fraud. The credibility of an employee who has been trained to use an Ethics Line, fails to use an Ethics Line, then alleges retaliation is diminished.
Internal Investigation Program
It is rare for an organization to outright commit fraud. But it is not uncommon for a claimant to inflate stories for their legal and financial benefit. A strong HCM program includes an effective internal investigation program. Serious allegations made by an employee can be treated with respect and investigated with integrity, with the findings carefully documented. A history of dealing impartially with serious employee allegations would be inconsistent with the allegation made in this case.
Details of the case indicate the manager took for one incident as justification for termination. A practice that elevates the probability of litigation. It is the responsibility of managers to effectively deal with disgruntled employees with performance issues. If this was an underperforming employee, the manager failed to address performance issues timely, document, and apply corrective action appropriately.
Termination Risk Evaluation
Evaluating each recommendation for termination for liability risk is recommended. There were multiple red flags that could helped avoid this lawsuit. Managers are expected to give feedback regularly, address performance issues (including behavior challenges) timely, and document consistently. There is no evidence this was occurring in this case making the termination for one infraction give the appearance of retaliation.
Get an HR expert on your side that can help mitigate risk.
The lawsuit between Mr. Schwartz and his former employers is deeply complex and will take a great deal of time to litigate. Even if the defendants are found to be innocent, they will have incurred significant legal costs, as well as damage to their brand.
Todd Larrabee is President of Employer’s Guardian, LLC., a Human Capital Management provider that specializes in systematizing Human Resource, Safety, and Payroll processes to meet business objectives and proactively mitigate risk. Contact us today if you find your company in a similar situation, or if you just want to discuss the various ways in which Employer's Guardian can help!
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