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Ethics Keyed to Hazard
In Re Columbia/HCA Healthcare Corp. Billing Practices Litigation
Facts
Anticipating an investigation by the U.S. Department of Justice as to possible Medicare and Medicaid fraud, Defendant Columbia/HCA Healthcare Corp. conducted several internal audits of its Medicare patient records in an effort to determine if any “miscoding” of these records had occurred. When the DOJ attempted to obtain copies of these audits, Columbia initially refused on the grounds of the work product and attorney-client privileges. Following a change in management, Defendants subsequently offered to cooperate with the DOJ by releasing some of these audits for its inspection–with the agreement than this would not constitute a waiver of any privileges-and this cooperation eventually resulted in an $8.5 million settlement. In the wake of this settlement, a wave of insurance companies and private individuals sought access to these same records to determine the amounts, if any, that they had been overbilled during the same period. Their argument was based on the alleged waiver of privileges in the course of Defendant’s cooperation with the investigation.
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