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Adams v. Penobscot Community Health Care

United States District Court, D. Maine

November 19, 2019

CLAIRE ADAMS, Plaintiff
v.
PENOBSCOT COMMUNITY HEALTH CARE, ATHENAHEALTH, INC., AND DAVID LOXTERKAMP, MD, Defendants

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

          Lance E. Walker United States District Judge.

         Through her Motion for Leave to File Second Amended Complaint (ECF No. 48), Plaintiff Claire Adams abandons her “qui tam” action. What remain are a federal whistleblower claim advanced under the False Claims Act and a state law whistleblower claim advanced under the Maine Whistleblower Protection Act and the Maine Human Rights Act.

         Through her Motion for Leave to File Second Amended Complaint, Plaintiff endeavors to reinforce her whistleblower claims in response to arguments pressed by Defendants through their Motions to Dismiss (ECF Nos. 45 & 46). I GRANT Plaintiff's motion to replace the First Amended Complaint with the Second Amended Complaint and will evaluate Defendants' motions based on the allegations found in the Second Amended Complaint.

         Plaintiff's Second Amended Complaint

         Plaintiff's non-conclusory factual allegations are accepted as true for purposes of ruling on Defendants' motions to dismiss.

         Plaintiff Claire Adams was the Practice Director for Penobscot Community Health Care (“PCHC) at its Seaport Community Health Center (“Seaport”), beginning in October 2013 and ending with her June 5, 2015 suspension and June 17, 2015 resignation in lieu of termination.

         Defendant PCHC is a federally qualified health center with its headquarters and principal place of business in Bangor, Maine. Defendant David Loxterkamp, MD, was PCHC's Medical Director for Seaport when Ms. Adams served as Seaport's Practice Director. Dr. Loxterkamp was also a member of the physician advisory board for Defendant athenahealth.

         Defendant athenahealth is a software company with its headquarters and principal place of business in Watertown, Massachusetts. PCHC and athenahealth are parties to a “master service agreement” pursuant to which Seaport was to become a showcase demonstration practice for athenahealth's software products and services, in exchange for free use of athenahealth's electronic medical record (EMR) software products, use of a newly renovated and fully furnished state-of-the-art medical facility in Belfast owned by athenahealth at below-market rental rates, and free “consulting services” concerning the design and operations of Seaport's facility and practice.

         In August of 2014, after Seaport moved into athenahealth's facility, Seaport began to work on implementation of an athenahealth-promoted tablet product meant to streamline the patient appointment check-in process. Shortly after implementation, Ms. Adams raised concerns in writing to PCHC management that the tablet and related software may not work well with the practice's electronic medical record, may divulge some patient information to athenahealth, and may prevent providers from having ready access to an accurate digest of relevant patient information and history.

         Plaintiff's efforts in this regard were viewed as obstructionists by certain pivotal personalities at PCHC, including Defendant Loxterkamp, who was sufficiently angered by Plaintiff's failure to go with the flow concerning the tablet software, a second software product subsequently rolled out by athenahealth, and other matters of great concern to athenahealth, that he threatened to resign if PCHC did not remove Plaintiff from her position. In this regard, Dr. Loxterkamp and athenahealth prevailed, but PCHC was kind enough to let Plaintiff retire in lieu of termination. Following Plaintiff's departure, PCHC hired athenahealth's project manager in her stead.

         A few weeks before her departure, Plaintiff voiced certain concerns in person to Lori Dwyer, PCHC's Chief Compliance Officer. Specifically, Plaintiff observed that PCHC, at its Seaport practice, engaged in the practice of referring all MaineCare patients who were referred to physical therapy for the maximum number of physical therapy appointments allowed by MaineCare at Seaport's in-house physical therapy department. Plaintiff indicated it was her opinion that the referrals were irrespective of medical need because PCHC encouraged patients to attend the maximum number of available physical therapy appointments at Seaport. Plaintiff also indicated to Ms. Dwyer that billing the MaineCare Medicaid program for those appointments could be fraudulent.

         Based on these material allegations, Plaintiff asserts in one count two separate claims of whistleblower retaliation. The first claim arises under the federal False Claims Act and serves as the foundation for this Court's exercise of jurisdiction over the matter. The second claim arises under the Maine Whistleblower Protection Act and the Maine Human Rights Act. In summary, Plaintiff alleges she was terminated for blowing the whistle on MaineCare-billing and patient-safety concerns. Plaintiff further alleges that her claims run not only against PCHC, her official employer, but also against Dr. Loxterkamp and athenahealth.

         Discussion

         To avoid dismissal, Plaintiff's complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Practically speaking, this means the complaint must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying this standard, the Court will accept factual allegations as true and consider whether the facts, along with reasonable inferences that may arise from them, describe a plausible, as opposed to merely conceivable, ...


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