United States District Court, D. Maine
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTIONS TO DISMISS AND PLAINTIFF'S MOTION FOR LEAVE TO
FILE SECOND AMENDED COMPLAINT
E. Walker United States District Judge.
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.
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.
Second Amended Complaint
non-conclusory factual allegations are accepted as true for
purposes of ruling on Defendants' motions to dismiss.
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.
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.
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.
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.
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.
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.
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.
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, ...