Unresolved cases

More hospitals expected in kyphoplasty case

More than 100 hospitals around the country have collectively paid $75 million to resolve Medicare overbilling allegations in a mammoth False Claims Act case surrounding the spinal surgery known as kyphoplasty—and there are likely more to come.

The legal battle begin in 2005, when two former managers at Kyphon accused the company of advising hospitals on ways to upcode their claims and get Medicare to pay more. But after the company settled the case, also for $75 million, federal investigators went on to target a still- unknown number of individual hospitals.

Whistle-blower attorney Tim McCormack of Phillips & Cohen in Washington said he could not comment directly on whether there are unresolved cases, but he did cite media reports that investigators have contacted hospitals other than those that have settled. “With the caveat that I can’t say whether there are additional cases out there, if to the extent that there are additional cases, I wouldn’t be surprised to see a hospital take it to trial,” McCormack said.

So far, no hospital has taken a kyphoplasty case to trial, and none has admitted wrongdoing. The average

settlement is about $750,000, though Atrium Medical Center, Middletown, Ohio, agreed to pay $4.2 million, the largest sum in the 55 settlements announced last week.

Executives at targeted hospitals say Medicare published confusing rules on when the patients were eligible for overnight hospital care. They also note that the decision to admit patients is made by physicians, often ones not employed by the hospital.

“We are pleased to see new clarification of industry care standards, which help physicians make decisions regarding kyphoplasty patients,” said Ed Fishbough, spokesman at for-profit hospital chain HCA, which had 23 hospitals among the latest round of settlements.

McCormack, though, said the hospitals targeted by the lawsuits “knew what they were doing was wrong.”