MASS GENERAL HOSPITAL TO PAY $14.6 MILLION TO RESOLVE OVERLAPPING SURGERY CLAIMS; STANDARDIZED CONSENT FORMS TO BE AMENDED – Press Release

BOSTON, Feb. 19, 2022 /PRNewswire/ — Massachusetts General Hospital (MGH), the clinical teaching arm for Harvard Medical School and one of the world’s most prestigious hospitals, has resolved a federal whistleblower case stemming from allegations that some of the hospital’s orthopedic surgeons engaged in overlapping surgeries that violated federal Medicare and Commonwealth of Massachusetts Medicaid rules.   

MGH will pay $14.6 million to the federal government and Massachusetts and change its informed consent language to better apprise patients of when their surgeon has an overlapping surgical obligation.

The settlement – reached after extensive discovery – resolves claims brought by an anesthesiologist, Dr. Lisa Wollman, in the matter of United States ex rel. Lisa Wollman, M.D. et. al. v. Massachusetts General Hospital, et al., No. 1:15-CV-11890-ADB.

Dr. Wollman brought her suit under the Federal and Massachusetts False Claims Acts. These statutes allow individuals, under certain circumstances, to bring suit in the name of the government to return money to the government treasury.

Dr. Wollman, known under the False Claims Act as the “Relator,” brought her suit as a vehicle to address patient care issues; she alleged the following:

• Teaching surgeons were not present for or performing the key and critical portions of certain surgeries;
• Teaching surgeons did not wait until the key and critical portions of one surgery had been completed before beginning a second, overlapping surgery;
• Teaching surgeons did not designate another qualified surgeon to be immediately available to assist as needed in the non-key and non-critical portions of the overlapping surgeries for which the teaching surgeons were not present;
• The government was billed for excessive anesthesia services;
• Informed consent was not adequate for overlapping surgeries.

In addition to the monetary payment, Mass General Brigham shall add the following language to its standardized procedural consent form for Massachusetts-based hospitals within its system:

My surgeon has informed me that my surgery is scheduled to overlap with another procedure she/he is scheduled to perform. I understand that this means my surgeon will be present in the operating room during the critical parts of my surgery but may not be present for my entire surgery. I understand that my surgeon or another qualified surgeon will be immediately available should the need arise during my surgery.

“This lawsuit was a catalyst for an important dialogue that will cause a world-renowned institution to set a precedent for a new standard of care in informed consent for overlapping surgeries,” said Reuben Guttman of Guttman, Buschner & Brooks, PLLC, the lead counsel for Dr. Wollman.   

“MGH has new leadership, and I am pleased this case put us in the position where we could have a dialogue that will improve patient care and, as importantly, transparency,” said Dr. Wollman.

Dr. Wollman initially filed her case in 2015 and pursued it even after the government declined to intervene. She persisted with an amended complaint despite dismissal by the court of her original filing.  

An amended complaint resulted in a court decision, United States ex rel. Wollman v. Massachusetts General Hospital, 394 F. Supp. 3d 174 (D. Mass. 2019), which laid the legal groundwork for the government and other whistleblowers to challenge improper overlapping surgeries. Since the court’s precedential ruling, overlapping surgery cases have been brought and resolved in New York and Arizona. 

The highly contested litigation also resulted in a ruling denying the applicability of the peer review privilege under the federal False Claims Act, United States v. Massachusetts Gen. Hosp., Inc., 498 F. Supp. 3d 186 (D. Mass. 2020), and a ruling on the applicability of a privilege for an internal review of Dr. Wollman’s allegations conducted by a Boston law firm, see United States ex rel. Wollman v. Massachusetts General Hospital, 475 F. Supp. 3d 45 (D. Mass. 2020).

The case received assistance from the United States Attorney’s Office in Boston and the Office of Massachusetts Attorney General Maura Healey. In particular, Relator recognizes the essential support from Assistant United States Attorney Abraham George and Kevin Lownds, Deputy Chief of the Massachusetts Attorney General’s Medicaid Fraud Division.      

As a consequence of the Covid epidemic, much of the active litigation of the case – including oral arguments and all depositions – was conducted by remote technology.

Counsel from GBB who worked on the case included: Reuben Guttman, Traci Buschner, Justin Brooks, Liz Shofner, the Hon. Nancy Gertner (Ret.), and Dan Guttman. 

Co-counsel at Burns & Levinson in Boston included: Paul Mastrocola.

The Relator recognizes the prior groundbreaking efforts of Burns & Levinson and, particularly, Ellen Zucker in their representation of Dr. Dennis Burke who – with Dr. Wollman – raised concerns about concurrent surgery.

Guttman, Buschner & Brooks PLLC is a boutique firm whose attorneys have worked on cases recovering nearly $6 billion for state and federal governments, including a $280 million recovery in a non-intervened case against Celgene Corporation on the brink of trial (U.S. ex rel. Brown v. Celgene) and a settlement against Humana Inc. achieved on the brink of trial (U.S. ex rel. Graves v. Humana). Attorneys at the firm represented the lead whistleblower in U.S. ex rel. McCoyd v. Abbott Labs, which involved the recovery of $1.6 billion for the government; one of several whistleblowers bringing FCA cases against GlaxoSmithKline in 2012, which resulted in the recovery of $1.04 billion (U.S. ex rel. Graydon v. GSK);  one of the whistleblowers bringing FCA cases against Pfizer which resulted in the recovery of $2.3 billion (U.S. ex rel. DeMott v. Pfizer); the lead whistleblowers in U.S. ex rel. Sandler and Paris v. Pfizer, which resulted in a recovery of $257.4 million; the lead whistleblower in U.S. ex rel. Szymoniak v. Bank of America, which resulted in the recovery of $95 million; three of the whistleblowers in FCA cases against a large hospital chain (U.S. ex rel. Doghramji v. CHS), which resulted in the recovery of $98 million; the lead whistleblower in U.S. ex rel.  Kurnik v. Amgen, which resulted in the aggregate recovery of $30 million from Amgen, Inc., Omnicare, and PharMerica Corp.; and the whistleblower in U.S. ex rel. Abrahamsen v. Hudson Valley, which resulted in a recovery of $5.3 million to the federal government and state government. More information on GBB can be found at www.gbblegal.com. The firm also maintains the following informational site for whistleblowers, the media, and academics: www.whistleblowerlaws.com. 

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SOURCE Guttman, Buschner & Brooks PLLC