A pair of whistleblowers are working to keep a health care fraud case alive against Kinetic Concepts Inc., a company that makes medical devices. The whistleblowers filed the False Claims Act lawsuits alleging that the company miscategorized Medicare charges surrounding its vacuum wound therapy.

KCI has filed a motion in this health care fraud case for terminating sanctions which would cause their cases to be dismissed, and whistleblowers Steven J. Hartpence, a former employee of the company, and Geraldine Goedecke have opposed the motion.

The whistleblowers state that the motion by KCI is weak and simply reuses previous arguments that have already been heard by the court.

One such previous argument included KCI readdressing the 2013 event where the counsel for the whistleblowers was disqualified after inappropriately using privileged documents while knowing that the documents used were not permitted.

“KCI’s motion is fatally flawed because it ignores the relevant law regarding terminating sanctions and mischaracterizes the facts in support of the draconian measures it seeks,” the motions opposing KCI stated.

“In doing so, defendants urged the court to allow KCI to escape liability for years of fraud perpetrated on the United States,” Hartpence and Godecke stated.

Each health care fraud case was filed separately by the respective relator back in 2008, and they were initially filed under seal. Then later, they were consolidated for pretrial proceedings.

The allegations in each health care fraud case claimed that KCI submitted Medicare reimbursement claims for its vacuum-assisted, accelerated, wound-healing technology by using a payment modifier code.

This modifier code allowed the company to receive automatic payments while avoiding a stringent review of the claims which would have caused them to be rejected because the proposed uses were not Medicare-covered, each health care fraud case stated.

In KCI’s motion to terminate sanctions, it cited “abusive litigation practices” and stated that the whistleblowers acted in bad faith when it used privileged communication from KCI as part of their pleadings in the health care fraud case.

Court documents indicated that both whistleblowers took documents from their former employer, and a U.S. Magistrate Judge ruled that the documents were privileged and the whistleblowers were ordered to return the documents and redact content in the privileged documents was verbatim.

The attorneys were disqualified for failing to act ethically and contact a judge when they realized that the documents were covered under attorney-client privilege.

Hartpence and Godecke responded that even if the court had found that they had acted in bad faith, the court was responsible for moving toward a time-sensitive resolution and less harsh sanctions, rather than immediately terminating sanctions without finding other means to resolve the case.

The initial health care fraud lawsuit was filed by Hartpence in March 2008, with Godecke’s filed six months later. The two were consolidated and in May 2011, the case was unsealed.

Initially, the case was dismissed in January 2012, with the federal judge finding that the allegations Hartpence brought forth were based on information that had Artie been publicly disclosed.

Other claims were also dismissed for Godecke, with only her retaliation claim remaining.

Hartpence filed an appeal for his dismissal in February 2012 and Godecke soon followed in June 2012, so the court consolidated their appeals as well. In response, KCI renewed its motion for disqualification.

The Hartpence Health Care Fraud Case is US. ex rel. Steven J. Hartpence v. Kinetic Concepts Inc., Case No. 2:08-cv-01885 and the Godecke Health Care Fraud Case is U.S. ex rel. Geraldine Godecke v. Kinetic Concepts Inc., Case No. 2:08-cv-06403, in the U.S. Court for the Central District of California.