In 2010, Congress amended the Anti-Kickback Statute (the “AKS”) to provide that “a claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim” for purposes of the False Claims Act (the “FCA”). 42 U.S.C. § 1320a-7b(g) (emphasis added). Since that amendment, courts have wrestled with the statute’s “resulting from” requirement, and FCA plaintiffs and defendants alike have attempted to interpret the language to their advantage. Recently, the Eighth Circuit weighed in and determined that FCA claims premised on violations of the AKS require relators and the government to show “but-for” causation between alleged kickbacks and submitted claims.
In United States ex rel. Cairns v. D.S. Medical LLC, 42 F.4th 828 (8th Cir. 2022), a neurosurgeon, through his medical practice, ordered a high volume of spinal implants from a medical device company wholly owned by his fiancée. The agreement was highly lucrative for both parties, generating substantial commissions for the fiancée and earning generous stock options for the neurosurgeon. Eventually, other physicians grew suspicious of the surgeon’s high implant use, and the couple’s arrangement came under FCA and AKS fire in the form of a qui tam. Soon after, the government filed a complaint in intervention alleging the couples’ agreement constituted a kickback scheme that “tainted” claims submitted to government programs thus violating the FCA. At trial, the court instructed the...
Over the last year, beyond traditional healthcare and federal procurement matters, the government has pursued federal False Claims Act (FCA) investigations and enforcement across high-risk areas, i...