A decision last week by a Federal Appeals Court could impact the False Claims Act.
The Eighth Circuit Court of Appeals, which covers states in the middle part of the country from Minnesota and the Dakotas down to Missouri and Arkansas, concluded that to prevail in a False Claims Act (FCA) case, the relator/government must show that the bills in question would not have been submitted to the government “but for” the kickback. The relator in the case (United States ex rel. Cairns v. D.S. Medical, LLC, 2022 WL 2930946 [8th Cir. July 26, 2022]) asserted that kickbacks paid by a device company to a physician meant that any bill for a service performed by that physician involving the device were false. The plaintiff’s theory, in essence, was “Once there is a kickback, the work of the physician related to the kickback is tainted. The trial court agreed, and the physician lost at trial. But the Eighth circuit reversed, ruling that for the government to prevail in this sort of case, it must prove that “but for” the alleged kickback, the claim in question would not have been submitted.
The case is an interpreting of a sentence from 2010 Amendments to the False Claims Act that says that “A claim that includes items or services resulting from a violation of the Anti-kickback Statute constitutes a false claim.” The case is interpreting the phrase “resulting from.” The Eighth Circuit concluded that the phrase “resulting from” should be interpreted as meaning that if the kickback would...
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