Attorneys say claims against Cleveland, Tn.-based Life Care Centers of America in a False Claims Act case amount to $1.8 billion.
That equates to over $4 million for each of the 437 patients whose treatment is being closely examined by the government in the case that was filed in 2008. The investigation was launched in 2006 - charging that Life Care employees were encouraged to utilize excessively high levels of therapy to maximize Medicare payments.
Life Care is seeking additional time to examine the government's chief expert witness, Dr. David X. Cifu. The government initially said there should be three days allotted, while the defense asked for 127 days.
He has been questioned for three days, and Life Care is asking for 62 more days. The government said three days was enough. Attorney Sarah Arni said many of the questions being asked involved information that could be gleaned from his written opinion of the Life Care patient treatment.
Judge Sandy Mattice proposed a novel approach to settling the breach between the two sets of lawyers. He said it was termed night baseball arbitration. He said he would set a figure he believed was reasonable, and the two sides would submit the number they believe is reasonable. He said he would go with the number that was closest to his.
At one point the judge asked, "Do you know if this is even legal?"
The attorneys said they would continue to confer to try to come up with a compromise number themselves. The judge said, "The attorneys talking - that's a novel idea."
Government attorney Amy Kossak said the analysis by Dr. Cifu was based on 21 accepted standards of care.
The depositions are also being taken of a number of other experts in anticipation of what may be a lengthy trial at the Federal Courthouse in Chattanooga.
Life Care attorney Don Howarth of Los Angeles asked that jury instructions be agreed upon earlier in the case than normal, though the government and Judge Mattice disagreed.
Attorney Howarth said that might help better define the issues. He said, "We're building a machine here that is consuming us all."
Judge Mattice said, "Yes, it's consuming us all, but some in a more lucrative manner than others."
Attorney Howarth said currently there is "not only a gap between the parties, there's a gulf." He said the issues should be nailed down "so we at least are playing on the same field."
Attorney Eric Alexander of Washington, D.C., asked that the government provide data about patient treatment at facilities where Dr. Cifu and another government expert practiced. He said that might show a similarity to Life Care's treatment and be "a silver bullet" for Life Care. Or he said it could work against the defense.
Judge Mattice declined that motion, but said it could be brought back up later.