With the Department of Justice’s recently announced 2014 statistics, the United States has recovered nearly $23 billion from False Claims Act (FCA”) litigation since 2009. The overwhelming majority of these cases – 753 of 846 cases initiated in 2013 – are qui tam cases, filed by whistleblowers. Health care providers, in particular, constitute a large proportion of the United States’ recoveries each year – of the $3.8 billion recovered in 2013, $2.6 billion came from health care providers and $1 billion of that came from hospitals. While historically a government decision declining to intervene in a whistleblower’s case could be touted as a victory, whistleblowers are now increasingly pursuing their claims on their own with highly-motivated and well‑financed plaintiffs’ counsel. They are more willing than ever to take their client’s claims to the mat to extract the best settlement possible, or if necessary, take the case to trial. In today’s qui tam litigation climate, companies can and should assume that “it ain’t over ‘til it’s over.”
In a recent article published in the American Bar Association Health Law Litigation Winter 2015 Newsletter, “The Growing Threat of Qui Tam Litigation Against Health Care Providers,” the current landscape of qui tam litigation is explored in greater detail. The article addresses the nuances of the FCA (including a discussion of express and implied certification theories of liability, as well as Medicare conditions of participation and conditions of payment), the scope of available damages and penalties under the FCA, significant qui tam cases from recent years, and general guidance about the importance of a robust compliance program and best practices for responding to a government investigation and subsequent litigation.
