The United States District in Kosenske v. Carlisle HMA Inc. has concluded that this whistleblower case must go to trial on the factual issue of whether Carlisle Hospital violated the False Claims Act by submitting claims for anesthesia services provided arising from referrals from Blue Mountain Anesthesia Associates (BMAA). Dr. Kosenske, the whistleblower in this case, has alleged that the exclusive service agreement between the hospital and BMAA did not comply with the personal service exceptions under the Stark and Anti-Kickback Statutes.
The Kosenske case was first discussed in the Med Law Blog on February 4, 2009. At that time the third circuit had reversed the prior district court finding that the contracts involved had complied with the personal services exceptions. On remand, the district court has now dismissed cross motions for summary judgment by both parties, and concluded that, because of the fact that false claims violations require that the claims knowingly be made in violation of the statute, the trier of fact must decide both whether the parties were aware of the potential Stark and Anti-Kickback violations and that the claims were thereafter knowingly made. Dr. Kosenske was a former member of BMAA and continued his association with BMAA until 2005, when he left to establish a competing independent pain management practice. Dr. Kosenske is alleging that the exclusive agreement between the hospital and BMAA executed in 1992 did not meet the personal services exceptions of the federal statutes, after the hospital added a separate pain management clinic and ambulatory surgery center in 1998.