Labor & Employment Law Daily Wrap Up, WHISTLEBLOWERS—6th Cir.: Court upholds dismissal of FCA claims against Kentucky cancer centers, (Aug 25, 2025)

By George Basharis, J.D.

Appeals court finds whistleblower failed to show evidence of false claims submitted to Medicare.

The U.S. Court of Appeals for the Sixth Circuit has upheld the dismissal of a False Claims Act (FCA) whistleblower suit brought by a radiation oncologist against two Kentucky cancer centers, their billing company, and affiliated physicians. After years of litigation, the court determined that the relator did not establish evidence of a single false claim submitted to Medicare or other federal programs, leaving no basis for liability under the statute (U.S. ex rel. O’Laughlin v. Radiation Therapy Services, P.S.C., No. 24-5898 (6th Cir. Aug. 21, 2025)).

The radiation oncologist practiced at several cancer centers in Kentucky from July 2012 to October 2015. In 2016, he filed a qui tam action under the FCA, alleging that his former employers fraudulently billed Medicare and other federal programs for oncology and chemotherapy services. He claimed the facilities submitted reimbursement requests that falsely represented physician supervision or performance of services.

The government declined to intervene, although it reached a separate settlement with one facility not included in the appeal. The oncologist pressed forward against two cancer centers, a medical billing company, and two physicians. After multiple amendments to the complaint, the district court dismissed certain counts and later granted summary judgment for the defendants on the remaining claims (see Actual evidence of submitted claim required to establish FCA liability, Sept. 24, 2024). The oncologist appealed to the Sixth Circuit.

Radiation services. The first set of allegations focused on radiation therapy and simulation services. The oncologist contended that Medicare required these services to be performed or supervised exclusively by radiologists or radiation oncologists and therefore claims submitted by the centers were fraudulent.

The Sixth Circuit rejected this theory. Medicare divides radiation services into professional and technical components, with professional services performed by “a physician having appropriate qualifications.” The Medicare Claims Processing Manual does not restrict the specialty of physicians eligible to provide or supervise radiation services and consequently does not require that only radiologists or radiation oncologists perform them.

The oncologist attempted to bridge this gap by arguing that federal regulations incorporated state law and professional practice standards, which in his view imposed more stringent requirements. The court disagreed, finding that neither the federal provisions he cited applied to radiation therapy nor did Kentucky statutes create a material condition of payment requiring a radiologist or radiation oncologist. Even assuming there was noncompliance with some state provisions, the court explained that such regulatory shortcomings do not establish material misrepresentations sufficient for FCA liability.

The oncologist also alleged “absent physician” claims, asserting that the facilities billed for radiation services as if a physician performed or supervised them when no physician was present. The district court found these allegations unsupported, and the Sixth Circuit agreed. Many of the billing codes identified covered technical components that did not require a physician, while others permitted off-site interpretation. Moreover, the oncologist did not respond to defendants’ arguments refuting these counts, and the appellate court deemed them abandoned.

Chemotherapy services. The chemotherapy-related claims were allowed to proceed through discovery. These allegations centered on billing at the physician rate for services performed by nurse practitioners or physician assistants, or for services provided when no physician was allegedly present. Medicare reimburses such services at a reduced rate when performed by non-physician providers.

After discovery, the district court granted summary judgment for the defendants, finding that the relator had not presented evidence of a single false claim. The Sixth Circuit affirmed.

The oncologist advanced four categories of supposed false claims. His primary contention was that from late 2013 to mid-2014, there were too few physicians to cover three centers, meaning chemotherapy services billed during that period could not have been physician supervised. He relied on staff schedules and billing records to “triangulate” supposed absences. The court found this analysis flawed. The schedules were not intended to record physician presence. Temporary physicians were often used to fill staffing gaps, and testimony showed that locum tenens physicians regularly worked at the centers. As a result, the oncologist could not point to any specific date or patient claim lacking physician supervision.

The second and third categories alleged that “Thursday” chemotherapy services were unsupervised because all physicians were scheduled to attend tumor board meetings. These allegations referred specifically to chemotherapy services administered at one of the cancer centers during the Thursday noon hour and at another center throughout the day on Thursdays, when the oncologist claimed that all physicians were scheduled to attend the meetings at a nearby hospital.

However, the schedules again proved unreliable, and testimony, including the oncologist’s own, showed that not all physicians consistently attended these meetings. No evidence tied an absence to any claim submitted to Medicare.

The final category alleged that weekend injections of Leukine®, an immune-boosting drug, required physician supervision and therefore rendered weekend claims fraudulent. The court rejected this argument, finding that Leukine® is not classified as chemotherapy, is usually self-administered, and did not require on-site physician oversight.

Because none of these categories produced evidence of a specific false claim, summary judgment was appropriate. The Sixth Circuit emphasized the fundamental requirement of FCA litigation: the relator must identify an actual false claim submitted to the government. Alleging a fraudulent scheme or regulatory violation without tying it to a specific claim is insufficient. Both false claim and false statement provisions under the statute require this showing.

Moreover, the court applied the heightened pleading standard of Federal Civil Procedure Rule 9(b), which demands particularity in allegations of fraud, and reiterated that at the summary judgment stage, speculation or inference cannot substitute for evidence. Even if a scheme seems plausible, the absence of concrete examples of false claims is fatal to FCA liability.

Conspiracy. The relator also alleged that the defendants conspired to defraud federal health care programs. While the district court had initially allowed the conspiracy count to proceed, the claim collapsed when the underlying FCA claims failed. Absent proof of a false claim, there could not be an actionable conspiracy, the Sixth Circuit concluded.

The case is No. 24-5898.

Judge: Nalbandian, J.

Attorneys: Andrew Grosso (Andrew Grosso & Associates) for M.D. Robert C. O'Laughlin. Christopher A. Melton (Wyatt, Tarrant & Combs LLP) for Radiation Therapy Services, P.S.C.

Companies: Radiation Therapy Services, P.S.C.

Cases: Whistleblowers Procedure KentuckyNews MichiganNews OhioNews TennesseeNews