NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES M. HOLZNER, M.D., Relator, No. 21-55261
individually,
D.C. No.
Plaintiff-Appellant, 8:18-cv-01250-JLS-DFM
and
MEMORANDUM*
UNITED STATES OF AMERICA, ex rel,
Plaintiff,
v.
DAVITA INC., a Delaware Corporation; et
al.,
Defendants-Appellees,
and
LIFELINE VASCULAR CARE;
SOUTHWEST KIDNEY INSTITUTE, PLC,
Defendants.
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Argued and Submitted February 18, 2022
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pasadena, California
Before: BRESS and BUMATAY, Circuit Judges, and LASNIK,** District Judge.
Charles M. Holzner, M.D., appeals the dismissal of claims brought on behalf
of himself and the United States alleging three interconnected frauds designed to
optimize appellees’ profits by providing medically unnecessary products and
services and/or unreasonably expensive medications. Holzner argues that the
district court erred in dismissing the claims under the False Claims Act (“FCA”),
31 U.S.C. § 3729, and in denying him leave to further amend the complaint.
“The essential elements of an FCA claim are (1) a false statement or
fraudulent course of conduct, (2) made with requisite scienter, (3) that was
material, causing (4) the government to pay out money or forfeit moneys due.”
United States v. Corinthian Colls., 655 F.3d 984, 992 (9th Cir. 2011) (citation
omitted). “[A] false certification of medical necessity can give rise to FCA
liability.” Winter ex rel. United States v. Gardens Reg’l Hosp. & Med. Ctr., Inc.,
953 F.3d 1108, 1118 (9th Cir. 2020), cert. denied sub nom. RollinsNelson LTC
Corp. v. United States ex rel. Winters, 141 S. Ct. 1380 (2021). The false statement
need not deal with purely objective facts, but rather can involve a subjective
opinion or an expression of clinical judgment. Id. at 1119. A provider’s opinion or
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
2
certification that a certain treatment or service is medically necessary can be false
or fraudulent “if the opinion is not honestly held, or if it implies the existence of
facts—namely, that [the service] is needed to diagnose or treat a medical condition,
in accordance with accepted standards of medical practice—that do not exist.” Id.
Holzner’s Fourth Amended Complaint does not contain sufficient facts,
accepted as true, to state a plausible claim of false or fraudulent billing related to
the appellees’ provision of dialysis treatments, the prescription drug Sensipar, or
the prescription drug Renagel. The medical literature on which Holzner relies is
not as definitive as he would have it: it does not establish new guidelines for
practitioners or otherwise compel a change of practice among nephrologists.
Holzner is attempting to use the FCA to force dialysis facilities to reject the
considered opinions of treating nephrologists regarding the need for dialysis
treatments, Sensipar, and/or Renagel based on his reading of the relevant literature.
The allegations of the Fourth Amended Complaint show no more than a
disagreement in clinical judgment. Holzner has not raised a plausible inference that
the nephrologists’ certifications that these interventions are medically necessary—
or appellees’ reliance on those certifications—were false or fraudulent.1
1
Given that Holzner has failed to plausibly allege a false or fraudulent statement
regarding the dialysis treatments, Sensipar, or Renagel, the FCA claim cannot be
saved by his allegations of regulatory violations that may have led to (or might
have prevented) the non-existent falsehoods.
3
Because Holzner has not plausibly alleged a false statement, he cannot
plausibly allege scienter or materiality as to any of the three schemes.
Holzner argues that the district court erred in dismissing the Fourth
Amended Complaint without leave to amend because he could clarify that his
Renagel-related claim is based on the allegation that the treatment was not cost
effective. Such an amendment would be futile: the nature of Holzner’s challenge to
the Renagel prescriptions is clear in the Fourth Amended Complaint, and the
proposed amendment would not change the outcome of the case. With regards to
the dialysis and Sensipar claims, Holzner does not identify any additional facts that
could be alleged. The complaint that is currently under review is Holzner’s fifth
iteration of his claims. In developing the Fourth Amended Complaint, Holzner had
the detailed analysis of the district court to guide him and had a full and fair
opportunity to address the deficiencies identified. He failed to do so and has not
identified any new factual allegations that would give rise to a plausible inference
of FCA liability in light of the existing record. See Telesaurus VPC, LLC v. Power,
623 F.3d 998, 1003 (9th Cir. 2010).
AFFIRMED.
4