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Fired Dialysis Worker Has Case for Retaliation

EL PASO, Texas (CN) - A dialysis center does not have to face claims that it violated federal anti-racketeering law in the firing of a nurse who reported Medicare fraud, a federal judged ruled.

Nurse Edmundo Guerrero says Total Rental Care Inc. dba Davita aka Sierra Mobile Acute Dialysis Serviced fired him on Aug. 30, 2011.

The dismissal came after Guerrero allegedly told his supervisor that a co-worker was committing Medicare and Medicaid fraud by charging for procedures that were never done, or that were not ordered by a doctor.

Guerrero says Davita violated a whistle-blower provision of the False Claims Act and the Racketeering Influenced and Corrupt Organizations Act by firing him in retaliation.

U.S. District Judge Kathleen Cardone dismissed Guerrero's RICO retaliation claim Monday, noting that Guerrero himself admitted he lacks standing for the claim.

Guerrero's False Claims Act retaliation claim, however, will stand.

"The 'whistleblower' provision of the FCA, also known as a qui tam suit, protects employees who take steps to uncover and report an employer's fraudulent submission of claims to the government," Cardone wrote.

A qui tam suit is a lawsuit brought by a private citizen on behalf of the government.

"To state a claim for retaliatory discharge, a plaintiff must show (1) he engaged in activity protected under the statute; (2) his employer knew he engaged in protected activity; and (3) that he was discharged because he engaged in this protected activity," Cardone wrote.

Davita argued that Guerrero's allegations did not rise to the level of a protected activity because the former employee did not cite a concrete example of the alleged Medicare fraud.

But Cardone said Guerrero does not need to support his fraud allegations at this stage in the proceedings. He must merely state a claim that is plausible on its face, which he did.

Davita also claimed it had no notice that Guerrero engaged in a protected activity, once again contending that the former staffer has not described the alleged fraud.

Rejecting this claim, Cardone said case law requires Guerrero to have specifically reported the fraud to a supervisor, which he did. It does not require him to have reported the fraud in detail.

"Plaintiff has therefore sufficiently alleged employer knowledge," Cardone wrote.

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