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Lincare Asks For Dismissal Of Lawsuit

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By CAROL GENTRY The Tampa Tribune

Published: November 2, 2007

TAMPA - Attorneys for Lincare Inc. on Thursday asked a federal judge to throw out a lawsuit alleging Medicare fraud that a Plant City businessman filed on behalf of taxpayers. The company's attorneys argued that the whistleblower hasn't backed up the allegations.

The whistleblower, Ben Bane, accuses Lincare of helping a number of medical-testing companies to inflate Medicare payments, billing for services that were not necessary. Bane's complaint, filed in U.S. District Court in Tampa, cites four doctors who said they were unaware that forms they signed were being used to bill Medicare for up to $198 for a $17 test they ordered.

Lincare, based in Clearwater, is one of the nation's largest medical supply companies, providing oxygen and respiratory therapy to lung-disease patients in their homes. It serves more than 530,000 customers, most of them Medicare beneficiaries.

If the lawsuit is successful, Bane would receive up to 30 percent of any judgment or settlement in the case, since the government elected to let him carry the ball on its behalf.

That gives him an incentive to levy charges that are unwarranted, said Lawrence Ingram, an attorney for Lincare. "Mr. Bane stands to receive a fortune" if he wins the case, he told the court.

Bane's complaint alleges that Lincare helped Breathe Easy Pulmonary Services, an unrelated medical-testing company in Clearwater, obtain at least $5.5 million in unauthorized Medicare payments.

Bane's attorney, Kevin Darken, told the court that Lincare helped Breathe Easy because the smaller company wouldn't have wanted to go to a patient's house to run a $17 pulse oximetry reading. Without the results of that test, Lincare couldn't deliver the oxygen supplies and begin billing Medicare.

Bane has filed a separate, similar fraud lawsuit against Life Care Diagnostics, which is pending before a different judge. The hearing Thursday involved only Breathe Easy and its parent company, Premier Cardio Pulmonary Medical.

Breathe Easy's attorney, Margaret D. Mathews, told the court that Bane's complaint is too vague to support a legal case. It includes only one referral form from a doctor ordering a blood oxygen test, and even that is ambiguous, she argued, because it doesn't make clear whether the patient received the more expensive treatments, whether her doctor ordered them or whether she in fact needed them.

Darken, Bane's attorney, said he couldn't ask the doctor those questions because he died before Darken took on the case.

The case dates back to 2005, when government health-fraud investigators served a search warrant on Bane Medical Services in Plant City. Bane, who had sold the company to Lincare in December 2004, said he passed on information he learned about the company to investigators in early 2005. After two years of investigation, government prosecutors decided not to pursue any case. Bane decided to file a lawsuit against Lincare himself. In May of this year, the case became public.

No testimony was presented at Thursday's hearing. U.S. Magistrate Judge Mark Pizzo, who listened to the legal arguments, will issue a recommendation to U.S. District Judge Susan Bucklew. Pizzo's recommendation will not come for at least a week; he granted Lincare a week to submit more materials.

They relate to Lincare's other motion: that Darken be disqualified from representing Bane because he was an assistant U.S. attorney in Tampa who actively participated in another Medicare fraud investigation of Lincare in the mid-1990s.

That case involved relationships between Lincare and pharmacies between 1989 and 1992. The company settled the case for $1 million in October 1996.

Reporter Carol Gentry can be reached at cgentry@tampatrib.com, or (813) 259-7624.

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