Sanford Heisler Sharp Requests Sanctions for Destruction of Electronically Stored Information in Bon Secours False Claims Lawsuit

Posted May 1st, 2017.

Witness corroborates Relator’s claims that senior staff forged doctors’ signatures, doctors confirm their signatures were forged

For more information, contact Jamie Moss, newsPRos, 201-493-1027, jamie@newspros.com

May 1, 2017, New York, NY – June Raffington’s long-running False Claims Act lawsuit against Bon Secours and its affiliates—United States of America et al. v. Bon Secours New York Health System, Inc., et al.—is rapidly progressing on two fronts in U.S. District Court for the Southern District of New York.

Raffington, a Masters-level nurse, was Vice President of Home Care Services for the Schervier Long Term Home Health Care Program, where she was responsible for upholding regulatory compliance and managing staff to ensure that quality standards were met. During her tenure in this role, from 2008 to 2009, she learned of forgeries of health care documents by company employees that violated federal and state laws.

She is represented in a False Claims Act action by Ross B. Brooks, Jennifer Siegel, and Inayat Ali Hemani of Sanford Heisler Sharp LLP, New York.

On the first front, three physicians and a former staff member at Bon Secours filed declarations today testifying that the agency’s employees, including a former Vice President, forged physicians’ signatures on medical orders for patients. These forged signatures allowed the companies to fraudulently bill Medicare or Medicaid for home health care services.

“These new declarations materially strengthen June’s case,” said Siegel. “They match Relator’s allegations that, according to another junior staffer, a senior vice president forged doctors’ signatures and ordered him to do the same.  Although June alleges that she was fired in 2009 for her attempts to address the companies’ fraudulent activities, to her credit, she has persisted in her efforts to end this fraud for the past eight years.”

On the second front, Sanford Heisler Sharp today asked Judge Gabriel W. Gorenstein to sanction the Bon Secours defendants for destroying electronically stored information (“ESI”), including the email accounts of Raffington and 13 other individuals that may contain damning information about the companies’ violations of federal and state health care billing laws

“Although we have diligently pursued discovery in this matter, the defendants waited over six months to inform Relator that disaster recovery tapes exist and can be restored for the 14 missing email accounts,” said Brooks. “Defendants destroyed Raffington’s email account and hard drive, as well as those of other key witnesses, including the Vice President accused of ordering forgeries of physicians’ signatures, and the junior staff member, whom Defendants admit they fired because of allegations that he carried out such forgeries. These actions satisfy the legal criteria for the court to sanction Defendants for the destruction of evidence or failure to properly preserve evidence in anticipation of litigation. What they did is indefensible.”

The legal term for the actions taken by the Bon Secours defendants is spoliation. The letter to Judge Gorenstein asserts the defendants acted with a culpable state of mind in deleting emails relevant to Raffington’s claims that should have been preserved so that they may be used in this action.

The letter to the Court asks Judge Gorenstein to order the Defendants to restore all requested email disaster recovery tapes at their expense; to reimburse Raffington for all fees and costs associated with investigating the spoliation and filing of the related motions; and to adjourn the current fact discovery deadline of June 30, 2017, pending Defendants’ production of additional documents.

Headquartered in Marriottsville, MD, Bon Secours Health System, Inc., is a not-for-profit Catholic health system that owns, manages, and/or joint ventures 18 acute-care hospitals, a psychiatric hospital, five nursing care facilities, five assisted living facilities, and 15 home care and hospice programs. Bon Secours owns and operates Bon Secours New York, which operated the Schervier Long Term Home Health Care Program until 2015. Prior to its closure, the Schervier LTHHCP was a home health agency providing services defined under federal and state laws.  In 2015, according to media reports, Bon Secours Health System earned a revenue of $3.48 billion.

About Sanford Heisler Sharp

Sanford Heisler Sharp is a public interest class-action litigation law firm with offices in New York, Washington, D.C, Nashville, San Francisco and San Diego.  Our attorneys have graduated from the nation’s top law schools, clerked for judges throughout the United States, and amassed extensive experience litigating cases that have earned over one billion dollars for our clients.

The Firm specializes in civil rights and general public interest cases, representing plaintiffs with employment discrimination, labor and wage violations, predatory lending, whistleblower, consumer fraud, and other claims. Along with a focus on class actions, the firm also represents individuals and has achieved particular success in the representation of executives and attorneys in employment disputes. For more information go to sanfordheisler.com or call (646) 681-7373 or email dsanford@sanfordheisler.com. For the latest news visit our newsroom or follow us on Twitter at @sanfordheisler.

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