Second Circuit Court of Appeals affirms dismissal of radiologist's claims against insurance fraud investigator for Bivens and Federal Tort Claims Act claims

Shapiro v. Goldman, No. 16-3097-CV, 2017 WL 3635517 (2d Cir. Aug. 24, 2017)

Citing a "thorough opinion of the district court", the United States Court of Appeals for the Second Circuit affirmed a judgment dismissing claims against an insurance industry trade association.

Plaintiff is a radiologist named in a federal indictment alleging a conspiracy to commit insurance fraud. The Government's indictment charged 36 defendants with multiple counts of conspiracy involving "no-fault" clinics created to defraud insurance companies under no-fault insurance laws. Plaintiff's alleged role was in fraudulently "inflating" reports of his reviews of MRI films, in order to support additional unnecessary treatment. Charges against him were dismissed on the Government's recommendation by an order of nolle prosequi.

Plaintiff then commenced an action against a variety of private and Government defendants, alleging a broad conspiracy between the U.S. Government and the private insurance industry to unscrupulously prosecute fraud cases against health care providers in order to minimize insurer's reimbursement costs and thereby maximize their profits. Defendant trade organization investigates suspected insurance fraud committed against member insurance companies and may refer results of investigations to the FBI for possible prosecution. Plaintiff asserted Bivens claims alleging multiple violations of his constitutional rights.

The District Court dismissed the claims against the trade organization on grounds that: 1) Bivens claims may not be advanced against a private entity, including, as in this case, a not-for-profit corporate entity; 2) Plaintiff's Complaint failed to establish that the trade organization acted under "color of federal law"; and 3) Plaintiff failed to allege personal involvement by the trade organization in the arrest, indictment, or prosecution of plaintiff, when the constitutional violations were alleged to have occurred. A malicious prosecution claim under the FTCA was improper, as the Act applies only to claims against the United States. Plaintiff appealed.

At Oral Argument, Plaintiff withdrew all but three Bivens claims, to proceed with those alleging malicious prosecution, inducement of false testimony, and defamatory statements made by the government (a "stigma plus" claim).

The unanimous three-judge panel concluded that dismissal was warranted upon its independent review of the record and for the reasons stated in the opinion of the district court.

AGF&J partner Barry Jacobs represented the defendant/appellee and briefed and argued the motion and appeal.


Practice Areas

Professional Liability Defense