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Berger Montague Whistleblower Team Leads Second Largest Ever False Claims Act Dental Case, Recovering More Than $23.9 Million

DATE: January 10, 2018

JANUARY 10, 2018. NEW HAVEN, CT – Benevis, LLC (formerly known as NCDR, LLC) and 133 affiliated Kool Smiles dental clinics have agreed to pay more than $23.9 million to the federal government and various state Medicaid programs to settle a series of False Claims Act lawsuits alleging that fraudulent and harmful dental procedures were performed on children in order to maximize profits.  This is the second largest False Claims Act whistleblower recovery against a dental provider in U.S. history.

In 2011, Berger Montague filed a qui tam whistleblower lawsuit on behalf of its two whistleblower clients against NCDR, LLC and various Kool Smiles dental clinics.  That lawsuit was amended in 2013.  The amended complaint alleged, inter alia, that:

  • Dentists and hygienists were directed to meet procedure quotas and revenue quotas in order to maintain their jobs; dentists were required to perform no less than 14 operative procedures per day; hygienists were required to perform a pre-consult, take x-rays, and perform a full cleaning, all within 15-20 minutes;
  • Procedure and revenue quotas were tracked every day for every clinic using an “Office Scorecard” which tracked whether each clinic was meeting its procedure and revenue quotas;
  • Clinics that failed to meet their quotas were “called out” on national conference calls which occurred weekly. Clinic managers whose dentists were not meeting quotas were placed on “performance improvement plans” until they met their quotas.  If the manager was not successful in meeting his/her revenue quotas, the manager was fired;
  • Dentists received a “Report Card” monthly which showed each dentist’s productivity. Dentists who did not meet their quotas were placed on Performance Improvement Plans.  If they did not subsequently meet their quotas, the dentists were fired;
  • In order to meet these quotas, children across the country underwent procedures such as pulpotomies, crown placements, and fillings which were not medically indicated;
  • In one instance, a five year old child underwent 12 pulpotomies and received crowns on 20 teeth over a two day period. Another child received 11 crowns in a single day;
  • To speed up procedures, children were immobilized using so-called “papooses;”
  • In many instances, while restrained, fearful children urinated on themselves during procedures, such that clinics maintained a washing machine and dryer on site to make children more presentable when they were returned to their parents; and
  • In many instances, the informed consent of parents was not obtained prior to these medically unnecessary procedures.

The case is an important one for children:  “Although no amount of money will heal a child traumatized by these alleged practices, this settlement will help deter other companies from engaging in profit-driven dental care,” said Daniel R. Miller, lead counsel for Berger Montague’s clients. “At the same time, our clients and their lawsuit helped return millions of dollars to American taxpayers.”

The case is captioned U.S. ex rel. Robin Fitzgerald et al. v. KS2 TX P.C. et al., C.A. No. 3:17CV834 (JBA) (D. Conn.).

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