AJC Watchdog: First Alert

Keeping watch on those who hold the public trust and money

Atlanta doctor, nurse may win more than $110 million in whistleblower case

A payment topping $110 million may be going to a metro Atlanta doctor and nurse after they worked to stop what they said was a scheme by their employer to defraud the federal government. But it was no easy-going for the two whistleblowers, Dr. Alon Vainer of Atlanta and nurse Daniel Barbir of Cummings.

Though they were fighting for federal taxpayers, the government declined to take up their lawsuit. So for nearly eight years, the doctor and nurse were left on their own to fight a healthcare giant.

They accused DaVita Healthcare Partners - the nation's largest provider of kidney dialysis services - of concocting a scheme to get more federal reimbursements by wasting drugs.The company intentionally ordered staff to use oversized vials of a vitamin D supplement Zemplar and the iron drug Venofer, then threw away the excess, the suit alleged, That purposeful waste, the two claimed, cost taxpayers hundreds of millions of dollars.

Last week, the Justice Department announced that DaVita had agreed to pay $450 million to resolve the allegations.

Judging by the announcement, federal officials were arm in arm with Vainer and Barbir. "This settlement is an example of what can be accomplished as a result of the successful cooperation between the government and whistleblowers in protecting our vital federal health care programs,” Benjamin C. Mizer, head of the Justice Department’s Civil Division, said in announcing the settlement.

But John Horn, acting U.S. Attorney for the Northern District of Georgia, noted that the doctor, nurse and their attorneys had engaged in "exceptional and extensive litigation efforts."

“Through personal sacrifice and courage, two whistleblowers exposed knowingly wasteful dosing practices designed simply to increase profits and improperly drain the government’s resources,” Horn said in a news release.

The release also cited the whistle-blowers' attorneys, Lin Wood and Marlan Wilbanks.

DaVita did not admit wrongdoing. But in court documents, the company said it recognized that "regrettable mistakes have been made in this case."

The federal False Claims Act grants those who bring successful suits 15 to 25 percent of any settlement amount. It also provides an award for attorney fees.


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About the Author

Lois Norder is Senior Editor for Investigations in the newsroom at The Atlanta Journal-Constitution.