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United States ex rel. Mikes v. Straus

United States Court of Appeals for the Second Circuit
274 F.3d 687 (2001)


Dr. Marc Straus, Dr. Jeffrey Ambinder, and Dr. Eliot Friedman, (the Physicians) (defendants) hired Dr. Patricia Mikes (plaintiff). Mikes was board-certified in pulmonology, the specialty of detecting lung conditions. Mikes discussed with Straus her concerns about how the Physicians were conducting spirometry tests to detect asthma and emphysema conditions. A spirometry test required a patient to blow into a mouthpiece that provided physicians instant analysis of the volume and speed of the patient’s exhalation. Mikes claimed the spirometry tests were administered by insufficiently-trained personnel and the tests were not calibrated according to American Thoracic Society (ATS) guidelines. The ATS recommended daily calibration, which the Physicians were not doing. Three months later, the Physicians fired Mikes. In addition to retaliatory termination and unlawful withheld wages claims, Mikes filed a qui tam False Claims Act (FCA) action in federal court alleging that the Physicians had submitted false reimbursement requests to the federal government for the spirometry tests given to patients. Mikes claimed that the Physicians’ failure to calibrate the spirometers daily rendered the results so unreliable as to be “false” under the FCA. The United States government declined to intervene in the case. The district court granted the Physicians’ motion for summary judgment and Mikes appealed.

Rule of Law


Holding and Reasoning (Cardamone, J.)

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