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10th Circuit Says 'So, What?' to Whistleblowing Doctor

By Jonathan R. Tung, Esq. on November 03, 2015 | Last updated on March 21, 2019

When Dr. Mark Troxler sued the clinic where he worked for fraud on behalf of the United States, it's doubtful his lawyers anticipated the speed at which his claims would be dismissed.

When the case got to the doorstep of the district court, defendants filed the legal world's equivalent of a "yeah, so?": 12(b)(6). Upon appeal, here's what the Circuit Court had to say: "I second that motion!" Who knew that whistleblowing would be so thankless?


Mark Troxler worked as a physician at Warren Clinic in Wyoming and its affiliated Saint Francis Health System. He claimed that nurses and other "non-physicians" were used "to obtain and record patients' History of Present Illness ('HPI') during office visits; and the defendant clinics have fraudulently billed Medicare and Medicaid.

Troxler, as relator to the US Government, contended violations under the False Claims Act (FCA). Troxler claimed that the facts proved that the clinics knowingly presented false or fraudulent claims to the United States Government.

Falsity Flavors

The lower court recognized essentially two types of falsity under the FCA: factual and legal. Factual falsity, it said, refers to those situations in which claimants did nothing, provided no services, but submitted claims anyway. It also refers to those situations in which defendants claim that services are compliant with a legally binding standard -- in this case, the HPI records.

With regards to legal falsity, the Court found Dr. Troxler failed as well. The submitted allegations of legal falsity were too general in that Medicare guidelines did not specifically require that only physicians obtain the HPIs.

Thus came the opinion of the court (and later the circuit court): Dr. Troxler failed to prove either type. It had no choice to dismiss the case.

The Circuit Court refused to overturn the lower court's ruling on the matter because it would affirm for "substantially the same reasons stated by the district court,".

No word if the good doctor intends to appeal this to a higher court. But, why would he want to?

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