David Yates Oct. 6, 2015, 3:00pm


Aetna Life Insurance recently filed a motion for sanctions in its against fraudulent billing case against North Cypress Medical Center.

As previously reported, Aetna filed suit against North Cypress and CEO, Dr. Robert Behar, on Feb. 23 in the U.S. District Court for Southern Texas, Houston Division.

Aetna charges the defendants of engaging in a fraudulent kickback scheme, which includes:

- Paying illegal kickbacks to physicians in exchange for patient referrals disguised as ownership interests in North Cypress;

- Charging grossly excessive fees;

- Implementing improper billing techniques; and

- Forgiving members’ financial responsibility in order to make the scheme work.

Aetna contends that Dr. Behar’s “out-of-network” business scheme has caused the company to overpay North Cypress as much as $120 million since Jan. 1, 2009.

Alleging fraud and RICO Act violations, on Aug. 11 Behar and North Cypress filed a counterclaim against Aetna and several of its executives for “instigating unlawful” schemes against physician-owned, out-of-network providers, court records show.

Aetna fired back on Oct. 2, filing a Rule 11 motion for sanctions, which argues the counterclaim was filed without reasonable inquiry into whether it had a basis of fact, and that the counter claim mirrors a previous complaint against it alleging RICO violations that was dismissed.

“Rule 11’s signature requirement is supposed to serve as a certification that a claim “merits the attention of the court,” Aetna’s motion states.

“Defendants’ retaliatory, imagined Counterclaim, which subjects individuals to potential RICO liability in a far flung state by copying text into a word processor and changing the names, does not.

“The Court should not be forced to devote resources to it, and neither Aetna nor its people should have to defend it.”

In March, North Cypress filed a motion to dismiss under the “First-to-File Rule” – a rule that applies when two similar suits brought by the same parties are filed in two different courts of proper jurisdiction.

North Cypress maintains it brought suit against Aetna first on Feb. 12, 2013, in Koening, et al v. Aetna et al, in order to collect unpaid payments from the insurance provider.

“North Cypress has filed this Motion to Dismiss only pursuant to the ‘First to File Rule’ … because it is obvious that Aetna is ‘judge shopping’ in an effort to maintain an identical, parallel lawsuit to the Koenig Case,” states North Cypress’ motion to dismiss.

On top of actual damages in the amount of $120 million, Aetna seeks recovery of treble, consequential and incidental damages, plus attorney’s fees.

Aetna is represented in part by Andrews Kurth LLP.

North Cypress is represented by Douglas Sutter, attorney for the Houston firm Kelly, Sutter & Kendrick.

Case No. 4:15-cv-00491

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