A former federal prosecutor is calling "unique and unusual" the pre-emptive lawsuits by a whistleblowing physician executive at IDX Systems Corp. and by the company itself, in that the moves effectively make public information that otherwise would be under a court-ordered seal.
And the lawyer for the physician agrees with that assessment.
"It's an unusual legal maneuver," says Seattle attorney Ricardo Guarnero, who is representing Mauricio Leon, M.D., in his lawsuit against Burlington, Vt.-based healthcare information technology developer IDX. "It puts us in a really awkward place."
Leon had been senior director of medical informatics in the Seattle office of IDX. Guarnero says Leon has been on unpaid administrative leave since last month, while IDX refuses to discuss Leon's employment status.
Guarnero says that Leon sued IDX this week so he can continue to support his family, who moved to San Diego from the Seattle area earlier this year.
"I want to move for injunctive relief (for IDX) to reinstate him and pay him," Guarnero says. Guarnero notes that IDX has 90 days to respond to a May 5 complaint Leon sent to the U.S. Department of Labor under the 2002 Sarbanes-Oxley Act on corporate governance, alleging that the company retaliated against the physician for reporting possible fraud.
"That will very quickly deplete his savings," Guarnero says.
"This legal strategy is somewhat unique and unusual," says Harold Malkin, a former assistant U.S. attorney now in private practice in Seattle.
"Both the defendant's (IDX) coming forward and filing a suit indicating the probable existence of a qui tam case is unusual, as is the relator's (Leon) coming forward," Malkin says. "Both have taken, in my view, unusual steps."
IDX sued Leon April 25 federal court in Seattle, asking the court to declare that the company would not be in violation of the federal False Claims Act or the Sarbanes-Oxley Act for retaliation against a whistleblower should IDX decide to terminate Leon.
In its suit, IDX claims that Leon was an "at will" employee with a salary of $160,000 plus bonus who demanded three years' severance pay and payments to cover his costs of relocating from the Seattle area to San Diego for personal reasons, terms that IDX deems "exorbitant."
Leon filed a suit of his own this week in the same federal court, charging that IDX retaliated against him for attempting to blow the whistle on an alleged scheme to defraud the government.
IDX says in its April lawsuit that "at some point in late 2002" Leon filed a qui tam (or whistleblower) suit against the company, an action that would be under court seal. Leon, in his suit, says that this week's legal action "in no way concedes or otherwise states that a qui tam action has been filed against IDX."
However, Malkin says, "Once a company gets a subpoena (from the U.S. Justice Department), it's a pretty good chance the company is under investigation or is the subject of a qui tam."
Malkin says that IDX does have the right to make a public acknowledgement of a subpoena or a qui tam suit. "The seal provision is in place to protect the government as it is investigating," the former prosecutor says.
Malkin says that judges have dismissed qui tam suits in cases where the whistleblower has violated the court seal, though, in this case, Leon has neither confirmed nor denied the existence of a qui tam complaint.
In addition to the lawsuit ant the Sarbanes-Oxley complaint, Leon filed a HIPAA privacy complaint with the HHS Office of Civil Rights earlier this month because the April 25 IDX suit mentions a specific medical condition the company says Leon used as justification for an earlier, paid, leave of absence.
IDX denies all the charges.