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Professional Responsibility Keyed to Hazard
In re Columbia/HCA Healthcare Corp. Billing Practices Litigation
Facts
During a Department of Justice (DOJ) investigation of Columbia/HCA (Defendant) for possible Medicare and Medicaid fraud, Defendant, either in response to the investigation or in anticipation of it, conducted several internal audits that examined various billing codes assigned to patients to determine any possible miscoding, deliberate or otherwise, of the patient. Following negotiations with the DOJ regarding the fraud investigation, Defendant agreed to produce some of the coding audits and related documents to the DOJ. In exchange, the DOJ agreed that certain confidentiality provisions would govern its obtaining the documents. Ultimately, the DOJ and Defendant reached a settlement of the fraud investigation. Once the nature, extent and results of the DOJ investigation were revealed, private insurance companies and private individuals filed a number of lawsuits seeking recovery of excess sums tendered by the private payors (Plaintiff) to Columbia/HCA (Defendant). The private payors (Plaintiff) sought an order from the district court compelling Defendant to produce the coding audits, which Defendant refused to do on the grounds of the attorney-client privilege. The district court concluded that Defendant had waived any privilege associated with the documents. Defendant appealed
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