Giurca v. Montefiore Health System, Inc.

Background

The order followed a conference held on March 4, 2020. It concerned discovery in Dr. Dan Giurca’s action against Montefiore Health System, Inc. and other defendants.

The court again noted that this was not a lawsuit brought on behalf of the government. It explained that Dr. Giurca’s claims under the federal False Claims Act, the New York False Claims Act, and New York Labor Law § 741 were retaliation claims only. To succeed, he would have to show that he engaged in protected conduct, that the defendants knew about that conduct, and that they fired him or took another adverse employment action because of it.

The court stated that complaints about former colleagues—including alleged plagiarism of treatment notes and failures to complete required form 9.27 documents on time—could qualify as protected activity for one or more of those laws. If so, Dr. Giurca could obtain discovery about the specific incidents he reported. The court concluded, however, that the claims did not support the broader discovery he sought to uncover additional, unknown misconduct by the same former colleagues.

Discovery Ordered

The defendants were ordered to produce:

- Three treatment notes identified in Dr. Giurca’s August 3, 2016 email: the original note by Dr. Hussain and the allegedly copied notes by Drs. Perlmutter and Von Schorn. - Two treatment notes identified in Dr. Giurca’s August 4, 2016 email: the original note by Dr. Giurca and the allegedly copied note by Dr. Hussain. - Documents sufficient to show the billing codes for the examinations corresponding to all five notes. - For each involuntarily committed patient referenced in paragraphs 31–38 of the amended complaint, the patient’s initial psychiatric evaluation and the complete form 9.27 for the relevant admission.

The defendants had to redact the documents as previously agreed by the parties, including removing patient names, correlate the documents to the relevant allegations, and produce them no later than March 19, 2020.

Discovery Denied and Disposition

The broader request included electronic sampling of records to search for other alleged instances of copied psychiatric records and complete psychiatric records for patients seen by another doctor while on call. The court denied that broader request. It ordered that all relief not specifically granted was denied.

This was a discovery ruling rather than a decision on whether Dr. Giurca would ultimately prevail on his retaliation claims. The court also reminded the parties that discovery closes on April 15, 2020. Judge Barbara Moses signed the order.