Aetna is countersuing a device manufacturer who made the mistake of filing a lawsuit accusing Aetna of improperly classifying the Cavitat device as “investigational and experimental.” The counterclaim documents accuse Cavitat Medical Technologies and buyers of its Cavitat ultrasound device of participating in an elaborate conspiracy to defraud patients, the FDA, and insurance companies [1,2].
The Cavitat device is claimed to help dentists diagnose neuralgia-inducing cavitational osteonecrosis (NICO), a condition that lacks scientific recognition . In 2002, Aetna issued a Clinical Policy Bulletin which explained why Aetna would not cover use of the device and other NICO-related procedures . In 2004, Cavitat filed a lawsuit accusing Aetna of publishing injurious falsehoods, engaging in unlawful restraint of trade, and racketeering. These charges were unfounded. After the racketeering charge and nearly all of the others were dismissed, Aetna filed a counterclaim for malicious prosecution and other wrongdoing. Based on documents gathered during the discovery process, the counterclaim alleges:
- Cavitat began selling its device before it applied for FDA permission to market them.
- The FDA rejected the company’s request to market its device as capable of diagnosing NICO or distinguishing between normal and diseased bone. Despite this, its promoters claimed that the Cavitat had been approved as a diagnostic device.
- Cavitat promoters falsely represented that an Institutional Review Board (“IRB”) had been established to oversee research on the device.
- Promotional literature promised that a practitioner could generate $115,200 in annual revenue from Cavitat scans for a 427% return on investment.
- Cavitat and members of its scientific advisory board taught dentists how to miscode their claims so insurance companies would not know that they were NICO-related.
- Twenty-two dentists submitted a total of 427 miscoded claims for which they received undeserved payment from Aetna . Of these, 185 were filed by Jerry Bouquot, D.D.S., who now chairs the Department of Diagnostic Sciences at the Dental Branch of the University of Texas.
- Almost without fail, Bouquot’s reports confirmed or supported the clinical diagnosis of the Cavitat practitioner. Aetna’s counterclaim accuses him and others of conspiring to commit insurance fraud.
- The racketeering lawsuit was generated and financed by Cavitat users and others who apparently hoped that it would intimidate Aetna and other insurance companies into paying for practices associated with use of the device.
- To fund the suit, Cavitat solicited funds from third parties who had invested in the company, some of whom had a monetary stake in its survival, as well as others whose livelihoods derived from the use of the Cavitat device. In exchange, each of these individuals was promised a share of the hoped-for recovery. One of the conspirators was Tim Bolen , who received part of a share for providing consultative services.
In May, the University of Texas announced that since Bouquot became director of its surgical pathology laboratory, the number of specimens the laboratory received had more than tripled:
Aetna is seeking recovery of its legal costs plus punitive damages that could amount to millions of dollars. It is also safe to assume that Aetna will seek to recover the money it paid in response to the allegedly fraudulent claims.
- Defendant Aetna’ Inc.’s original counterclaim. Cavitat Medical Technologies and Robert J. Jones v Aetna, Inc. U.S. District Court for the District of Colorado. filed June 22, 2005.
- Defendant Aetna Inc.’s first amended counterclaim. Cavitat Medical Technologies and Robert J. Jones v Aetna, Inc., U.S. District Court for the District of Colorado, filed Sept 27, 2005.
- Dodes J. Barrett S. A critical look at cavitational osteopathosis, NICO, and “biological dentistry”. Quackwatch, November 23, 2005.
- Neuralgia inducing cavitational osteonecrosis (NICO) and Cavitat ultrasonography. Aetna Clinical Policy Bulletin 0642, Revised Nov 2, 2004.
- Exhibit to counterclaim. Cavitat Medical Technologies and Robert J. Jones v Aetna, Inc., U.S. District Court for the District of Colorado. Document 114-2, filed Sept 27, 2005.
- Barrett S. A response to Tim Bolen. Quackwatch, Nov 21, 2005.
This article was posted on November 23, 2005