Qamar v Bermuda Medical Council

• Jurisdiction: Bermuda
• Judgment Date: 02 February 2021
• Docket Number: Appellate Jurisdiction 2019 No 33
• Year: 2021
• Court: Supreme Court (Bermuda)

[2021] Bda LR 10

In The Supreme Court of Bermuda

Appellate Jurisdiction 2019 No 33

Between:

Dr Asad Qamar

Appellant

and

Bermuda Medical Council

Respondent

Mr S Stevens for the Appellant

Ms S Dill-Francois for the Respondent

The following cases were referred to in the judgment:

Akinleye v General Medical Council [2004] EWCA Civ 120

Layne v Attorney General of Grenada [2019] UKPC 11

Ghosh v General Medical Council [2001] UKPC 29

Papps v Medical Board of South Australia [2006] SASC 234

Refusal of application for registration as a medical practitioner — appeal against decision of Bermuda Medical Council — Meaning of “appeal by rehearing” — Whistleblowing claims — Good character

JUDGMENT of Subair Williams J

Introduction

1. The Appellant, Dr Asad Qamar, is a medical practitioner who resides and practices as an expert interventional cardiologist in Florida, USA. Dr Qamar is a US citizen who is originally from Pakistan. In October 2018 he applied to the Bermuda Medical Council (the “BMC”) to be registered as a medical practitioner in Bermuda. By a written decision dated 24 September 2019 and signed by Dr Fiona Ross, the Chair of the Credentials Committee of the BMC, Dr Qamar's application was refused.

2. Dr Qamar now seeks to set aside that decision through the appeal process to this Court pursuant to section 7 of the Medical Practitioners Act 1950 (“the 1950 Act”) and the procedural provisions under Order 55 of the Rules of the Supreme Court 1981 (“RSC”).

3. This appeal was heard by way of a rehearing on oral and affidavit evidence filed by both sides. The Court also received very helpful and ably-made submissions from Mr Sam Stevens and Mrs Shakira Dill-Francois, for which I am most grateful. At the close of the hearing I reserved judgment and informed the parties that I would deliver these written reasons.

The Background Facts and Unchallenged Evidence

4. In 2009 the Appellant formed what became at one point one of the largest private cardiovascular practices in the US, the Institute of Cardiovascular Excellence (“ICE”). There were seven ICE offices employing up to 250 employees and 12 physicians servicing approximately 24,000 patients. Those patients were most largely either retirees of the US government Medicare insurance program (“Medicare”) or uninsured and/or indigent patients. By 2012, ICE had become the largest beneficiary of cardiovascular reimbursements by Medicare and featured among the 50th percentile for Medicaid reimbursements from the State of Florida.

5. Insurance coverage provided by Medicare applies to persons who are either over the age of 65 years or to persons of any age affected by a disability. Unlike, the US Federal and State Medicaid system (“Medicaid”), eligibility for Medicare is not income-based.

The Filing of Qui Tam Claims

6. In early 2011, a Dr Robert Green was employed as a general internist at ICE. His role was akin to the role of a general practitioner. Dr Green was placed on a three-month probationary period which was terminated without the offer of full-time employment. Months thereafter in July 2011, Dr Green filed a qui tam claim (whistleblower claim) against the Appellant, the Appellant's wife and ICE under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 – 3733. Such claims entitle a whistle blower to a shared portion of any settlement or damages awarded.

7. In June 2014 another qui tam claim was filed against Dr Qamar, his wife and ICE. This claim was brought by a Ms. Holly Taylor who was employed by a third party billing contractor (“PIP”) used by ICE. Dr Qamar's evidence was that Dr Green and Ms. Taylor were romantically involved and that ICE, being unhappy with PIP's services, had terminated PIP's contract shortly prior to the filing of this second qui tam claim in June 2014.

8. On 22 December 2014, the US Government subsequently intervened in both qui tam claims and in April 2015 the two qui tam claims were consolidated into one action.

Investigations into the Qui Tam Claims

9. The allegations underlying the qui tam claims were investigated over a four year period by the Office of the Inspector General (“OIG”), the Department of Health and Human Services and the civil division of the US Department of Justice (“DOJ”). These allegations accused Dr Qamar and ICE of improperly billing to Medicare, Medicaid and TRICARE for medically unnecessary procedures and improperly waiving Medicare co-payments. An extensive audit was undertaken by these investigating authorities culminating in formal complaints that Dr Qamar engaged in ‘over-utilization’ in respect of four patients treated in ICE's service line of peripheral endovascular interventions.

10. Dr Qamar maintained that these allegations were wholly unfounded. Notwithstanding, he also characterized these investigative conclusions as an ‘extremely low rate of incidence’ being 0.2% of the total pool of services provided by ICE. He also pointed to the reports of independent experts, Dr Michele DeGregorio, MD and Dr Gino J. Sedillo, both of whom were instructed without remuneration to review the cases of these same four patients. In Dr DeGregorio's report he concluded that in all cases hemodynamically significant and high grade lesions were noted and that “all interventions were considered appropriate”. Similarly, in Dr Sedillo's report he observed flow limiting lesions and found that “the treatment of said lesions was appropriate and met the current standard of care for treating lower extremity peripheral arterial disease.”

Settlement of the Qui Tam Claims (Medicare) with the DOJ and OIG

11. In his first witness statement to the Court which formed part of his evidence in chief, Dr Qamar referred to his settlement discussions of February 2015 as follows [paras 36–38]:

“36. In or around February 2015 I had a meeting with the OIG and DOJ in Washington DC. This was one of several meetings in 2015. I was present along with my attorneys in the qui tam litigation Greg Kehoe and Kirk Orgosky. Also present were the attorneys for the DOJ, Eva Gunaskerva and Adam Tarosky as well as the attorney for the OIG, Nancy Brown. They were clear with us that their expert did not consider that the interventions were justified, and that pitting the experts against each other at trial would be [a] very long and expensive process. They repeatedly stressed that it was in my interest [to] agree to a settlement.

37. I was adamant that I did not want to settle as I did not consider I had done anything wrong. In the back of [my] mind I was also worried that a settlement, no matter what its express terms, would make it look to the outside world like I had something to hide.

38. The OIG and DOJ said that if I did not settle they would bring me to a financial position where I would have no choice but to settle. I consider that this threat is what precipitated the subsequent ban from Medicare for myself and ICE…”

12. Having at this stage declined any proposed settlement agreement, in April 2015 the Center for Medicare and Medicaid services (“CMS”) confirmed a 3 year revocation of ICE's and the Appellant's Medicare privileges, effective 28 May 2015. By letter dated 28 April 2015, CMS wrote directly to Dr Qamar stating its reasons for revoking his Medicare privileges. Amongst those reasons it was stated that a data analysis of Dr Qamar's bills disclosed excessive time billed on a single date of service and 33 further instances of other days where he excessively billed for 20 hours or more of daily face-to-face contact with patients. The letter also states:

“In addition, data analysis conducted on claims billed by Dr Qamar, for dates of service between January 1, 2011 and November 24, 2014, revealed that Dr Qamar billed for services to beneficiaries who were deceased on the purported date of service. See Attachment C…”

13. The 3 year Federal Medicare ban triggered a 20 year Florida State ban against Dr Qamar and ICE from Medicaid. Feeling aggrieved by the 3 year exclusion and maintaining the wrongness of the stated grounds relied on, Dr Qamar instructed a US attorney, Mr Tracy Mabry, to appeal against the bans imposed by CMS.

14. Dr Qamar in his evidence to this Court narrated the consequential financial hardship he encountered leading up to the Chapter 11 bankruptcy proceedings filed by him and his wife and ICE. This was followed by the Appellant's decision to settle the qui tam claims with the OIG and DOJ and the related appeal against the ban from Medicare. Dr Qamar stated in his first witness statement [55]: “the decision to settle was made for purely practical and commercial reasons and not because I accepted that I was in the wrong.”

15. The settlement agreement in respect of Medicare was entered on 30 June 2016 (“the Medicare Settlement”). Embedded in the Recitals of the Medicare Settlement is the following caveat [G]:

“This Agreement is neither an admission of liability by Defendants nor a concession by the Governments that their claims are not well founded.”

16. Under the terms and conditions of the Medicare Settlement [para 6] the Appellant agreed to a 3-year exclusion in the following terms:

“In compromise and settlement of the rights of OIG-HHS to exclude Defendants pursuant to 42 U.S.C. § 1320a-7(b)(7), based upon the Covered Conduct, Defendants agree to be excluded under this statutory provision from Medicare, Medicaid, and all other Federal health care programs, as defined in 42 U.S.C. § 1320a-7b(f), for a period of three years. The exclusion shall be effective on February 1, 2017.”

17. The Appellant, through his attorneys, filed a Motion, dated 8 July 2016, for the US Bankruptcy Court in the Middle District of Florida to approve to the Medicare Settlement. By an Order of that Court, dated 19 January 2017, the said Motion was granted.

Settlement of the Qui Tam Claims (Medicaid) with the DOJ and OIG

18. The 20 year Medicaid ban remained and was not displaced by the Medicare Settlement. It...