Miami, FL, February 7, 2017. A judgment was
entered last night in United States of America and the State of
Florida ex rel. Theodore A. Schiff, M.D. v. Gary L. Marder, D.O. et
al., No. 1:13-cv-24503-KMM, a qui tam lawsuit in
which Port St. Lucie, FL dermatologist Gary Marder allegedly
pocketed tens of millions of dollars from Medicare by ordering
medically unnecessary biopsies, falsely diagnosing patients with
cancer, performing unnecessary radiation treatments on patients,
and illegally billing those biopsies and radiation treatments.
The judgment entered against Dr. Marder and his medical
practice is $18,017,382.
These allegations were first made in whistleblower lawsuits
filed in December 2013 and June 2014 in the United States District
Court for the Southern District of Florida by Dr. Theodore Schiff,
a resident of Palm Beach County, FL. Dr. Schiff was
represented by Lawrence Klitzman of the Klitzman Law Group, PLLC,
and Daniel Miller of the law firm Berger & Montague, PC.
Dr. Schiff is a double board certified medical doctor in
dermatology and dermatopathology. He is the medical director
and managing partner of Water's Edge Dermatology, LLC. After
examining a significant number of patients who were seeking a
second opinion after being diagnosed with skin cancer by Dr.
Marder, Dr. Schiff engaged attorney Lawrence Klitzman of the
Klitzman Law Group, PLLC to evaluate the investigation. That
investigation led to evidence that Marder appeared to be involved
in a kickback arrangement with Dr. Robert Kendall to diagnose
patients with skin cancer and then bill Medicare for unnecessary
biopsies and radiation treatments.
Dr. Schiff, working diligently with Klitzman, filed his first
complaint in December 2013. According to the complaint, Dr.
Marder required his physician assistants to perform up to 50
biopsies each day, and he instructed them to perform biopsies on
skin disorders for which biopsies were not appropriate, such as
acne, dried skin, warts, and freckles.
Once the biopsies were completed, Dr. Marder sent the specimens
to Dr. Kendall, a physician who operates a laboratory in Coral
Gables, FL. The suit alleged that Marder and Dr. Kendall were
involved in an illegal kickback scheme in which Dr. Kendall allowed
Dr. Marder to bill Medicare for the work Kendall performed as if it
were performed by Marder, and in exchange Kendall received
The complaint further alleged that Dr. Kendall falsely diagnosed
benign skin conditions as cancerous, affording Dr. Marder the
opportunity to recommend that such patients undergo radiation
therapy, which generated extra billing opportunities. In addition
to defrauding the government, Dr. Schiff alleged that this practice
presented considerable risk to patients, as radiation therapy
presents an increased risk of cancer, and can also be harmful to
After filing his first complaint, Dr. Schiff decided to
investigate what type of radiation equipment Dr. Marder had at his
offices. Through this effort, Dr. Schiff developed evidence
that Dr. Marder did not in fact have the radiation device necessary
for billing the government for certain radiation services.
Thereafter, Dr. Schiff filed a second qui tam complaint in
June 2014, alleging that Dr. Marder misled the government about the
type of machine he used to dispense radiation, allowing him to
collect a reimbursement rate from Medicare that was about seven
times higher than it should have been.
Both complaints were combined into one qui tam lawsuit;
Dr. Kendall was represented by Greenberg Traurig, and Dr. Marder
was represented by Akerman LLP.
In August 2016, Akerman submitted a motion to withdraw from the
case, writing, "Marder has insisted upon taking actions that
Akerman considers repugnant, imprudent, and/or with which Akerman
has a fundamental disagreement." (ECF No. 247, at 1-2). Chief Judge
K. Michael Moore granted the motion
During the government's investigation, both Drs. Marder and
Kendall invoked their Fifth Amendment right against
self-incrimination. While addressing this in the court order on
motion for summary judgment, which was largely granted in the
government and Dr. Schiff's favor, Chief Judge K. Michael Moore
wrote, "Although Defendants may have lost their best defense
through invocation of the Fifth Amendment privilege against
self-incrimination, the burdens on the parties at summary judgment
remain the same. Accordingly, the Court will draw adverse
inferences where it deems appropriate and only in situations where
the inference is complementary to the evidence presented by the
Government rather than its proxy." (ECF No. 255 at 8).
"Dr. Schiff should be personally commended for stepping forward
and blowing the whistle, and the government should be praised for
aggressively pursuing Dr. Schiff's claims," said attorneys Klitzman
and Miller. They also commented "Ted Schiff is an
outstanding clinician and a highly ethical person. When he
saw what was happening, he had the courage to step forward and do
something about it. We are proud to represent Dr. Schiff,
whose lawsuit brought an end to these horrific practices. We
also want to thank the government team, and in particular Assistant
United States Attorney Mark Lavine, who worked tirelessly to bring
this matter to s successful conclusion."
Dr. Schiff commented on the outcome: "I can only hope that more
health care providers will take the time and effort to report fraud
and abuse. It is rampant in South Florida, and if it
continues to go unreported, it will continue to undermine the trust
our patients place in us, as well as the reputation of the
healthcare community as a whole."
For more than 30 years, Klitzman Law Group, PLLC has
successfully handled complex commercial litigation cases, including
the representation of whistleblowers in health care fraud
cases. The firm has also handled consumer class actions
against financial institutions and Fortune 500 companies
resulting in multi-million dollar judgments. The practice also
includes the representation of physicians and business
owners on matters involving health care regulations, corporate and
tax law, real estate and estate planning.
For more than 15 years, the Berger & Montague, P.C.
Whistleblower, Qui Tam & False Claims Act Practice
Group has represented whistleblowers in matters involving
healthcare fraud, defense contracting fraud, IRS fraud, securities
fraud, and commodities fraud, helping to return more than $1.1
billion to federal and state governments. In return, whistleblower
clients retaining Berger & Montague to represent them in state
and federal courts have received more than $100 million in rewards.
Berger & Montague's time-tested approach in Whistleblower/Qui
Tam representation involves cultivating close, productive
attorney-client relationships with the maximum degree of
confidentiality for our clients. Our goal is for each of our
clients' experience as a whistleblower working with our firm and
with the government to be positive and fulfilling.