The Eighth Circuit Court of Appeals recently tossed a $5.5 million jury verdict finding that a physician violated the False Claims Act (“FCA”) by submitting claims for items and services ordered subsequent to a violation of the Federal health care program anti-kickback statute (“AKS”). According to the appellate court, the trial court’s jury instruction “brushed aside causation” and “misinterpreted” a 2010 amendment to the AKS.

As part of the Affordable Care Act, Congress in 2010 amended the AKS to expressly provide that a claim “resulting from” an AKS violation constitutes a false or fraudulent claim for purposes of the FCA. See 42 U.S.C. 1320a-7b(g). However, Congress did not define the phrase “resulting from,” leading courts to form divergent opinions as to whether a causal link between the kickback violation and the false claim is necessary and, if so, as to the nature of that causal link.

The Eight Circuit concluded that, when a plaintiff seeks to establish the falsity of a claim “resulting from” a violation of the AKS, the plaintiff must prove that a defendant “would not have included particular ‘items or services’ [in the claim] but for the illegal kickbacks” (emphasis added). United States v. Midwest Neurosurgeons, LLC, et. al, No. 20-2445, 14 (8th Cir. 2022). The Court said that its ruling is narrow and does not imply that every case arising under the FCA requires a showing of but-for causation, only FCA cases wherein the claim is allegedly ‘false’ because it ‘...

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