Madison - St. Clair Record

Tuesday, August 20, 2019

‘Upcoding’ lawsuit brought by Memorial nurse dismissed in federal court

By Record News | May 31, 2016

EAST ST. LOUIS – Attorney David Cates of Swansea has chosen not to litigate nurse Keith Werner’s suit claiming a California company cheated taxpayers on medical bills. 

Cates, son of Presiding Judge Judy Cates of the Fifth District appellate court, moved on May 24 to dismiss without prejudice Werner’s claims against CEP America. 

Werner sued CEP America and 11 affiliates in U.S. district court last year, seeking damages and civil penalties under the False Claims Act. 


The Act allows citizens to sue on behalf of government to recover amounts that vendors received through fraudulent claims. 

Cates alleged in the complaint that doctors working for CEP America charged Medicare and Medicaid for more expensive services than they performed, a process identified as “upcoding.” 

Werner is an intensive care nurse at Belleville Memorial Hospital with 33 years experience, according to the lawsuit. 

Cates wrote that Werner discovered the fraud in records he examined at Memorial. The fraud was alleged to have occurred in Illinois, California, Georgia, Maryland, Tennessee, Texas, Washington, and the District of Columbia. 

He notified the U.S. Department of Justice and attorney generals of the seven states that they could intervene. 

No one intervened, and Maryland asked for dismissal of any claims on its behalf. 

This March, CEP America counsel Robert Rhoad of Princeton, N.J., responded to the suit. 

In a motion to dismiss, Rhoad wrote that Werner couldn’t distinguish a medical record from a billing record. 

He wrote that the allegations failed to meet a requirement that fraud be pleaded with particularity. 

He also wrote that public accusation of fraud can do great damage to a firm before it is exonerated in litigation. 

Cates moved in April for an extension of time to respond, and Magistrate Judge Donald Wilkerson set a May 31 deadline. 

A week ahead of the deadline, Cates pulled the plug on Werner’s action.

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