Certain words in health care will stop any general counsel (GC) in their tracks. Sentinel events such as a wrongful death, traumatic injury, life care plan and wrong-site surgery come to mind. However, without sounding crass, mistakes happen even with the best care. The damage can be managed, and usually, there is insurance. However, notice of a False Claims Act (FCA) suit strikes a different kind of fear: the federal government on the outside, a whistleblower on the inside, exponential damages and penalties, criminal charges and, if that’s not enough, exclusion from Medicare or Medicaid, which is the corporate death knell for a health care company.This writing delves into the lifecycle of FCA litigation from the GC’s perspective and whether it matters if the Department of Justice (DOJ) intervenes.
The False Claims Act: Yesterday’s Law, Today’s Challenge
For background, the FCA is a federal law that imposes liability on individuals and companies that knowingly defraud government programs. President Abraham Lincoln enacted the law in 1863 to combat fraud by contractors against the Union Army during the Civil War. Amended over the years to incentivize whistleblowers, the DOJ continues to employ the FCA, 31 U.S.C. §§ 3729-3733, and annually lists its trophies in the billions of dollars.
Suit may be brought by the federal government or a private citizen (a whistleblower, who is called a relator under the FCA) in a qui tam. The suit is filed under seal in federal court, which...
Certain words in health care will stop any general counsel (GC) in their tracks. Sentinel events such as a wrongful death, traumatic injury, life care plan and wrong-site surgery come to mind. How...