Supreme Court

22-1046 - Malouf v. State ex rel. Ellis 

Malouf v. State ex rel. Ellis

  • Case number: 22-1046
  • Legal category: Procedure-PreTrial
  • Subtype: Summary Judgment
  • Set for oral argument: January 31, 2024

Case Summary

A primary issue in this case is whether the State can conclusively establish Medicaid fraud at summary judgment when scienter is an essential element of the claim.

Dr. Malouf is a dentist who owned a chain of dental offices. Dr. Malouf and his associates were approved Medicaid providers who provided dental and orthodontic services to Medicaid recipients. Over a three-year period, Dr. Malouf submitted forms falsely representing that he provided services to Medicaid recipients, although the dental services provided to the beneficiaries of those claims were actually performed by other dentists in Dr. Malouf’s practice.

Two private citizens brought separate qui tam actions against Dr. Malouf for violations of the Texas Medicaid Fraud Prevention Act. The trial court consolidated the cases after the State intervened in both. The State’s live petition at the time of summary judgment asserted that Dr. Malouf knowingly failed to identify the license type and Medicaid billing number of the treating dentist on more than 1,800 Medicaid claims, listing himself as the treating dentist, when, in fact, another dentist had provided the services. Both parties moved for summary judgment, the State on traditional grounds and Dr. Malouf on no-evidence grounds. The district court denied Dr. Malouf’s motion, granted the State’s, and awarded more than $16 million in civil penalties, attorney’s fees for the State and the private citizens who originally brought qui tam actions, and other costs and sanctions against Dr. Malouf.

Dr. Malouf filed a petition for review, arguing that the State did not conclusively show that he failed to indicate the treating dentist’s license type or that he acted knowingly. Specifically, Dr. Malouf contends that he did indicate the correct license type and that his testimony that he lacked personal knowledge of improper billing raised a genuine issue of material fact as to scienter. The Court granted the petition for review.


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