Not Just Constitutional, but Essential: How the False Claims Act’s Whistleblower Provisions Fight Fraud Against the Government

October 27, 2023

Since 1986, more than $50 billion has been returned to federal coffers through qui tam, or whistleblower lawsuits brought under the False Claims Act (FCA), the government’s primary civil fraud enforcement tool. Although one Supreme Court Justice recently raised questions about the constitutionality of this provision, which allows whistleblowers to file lawsuits alleging fraud against the government, every federal court to formally consider the question has concluded that the FCA’s whistleblower provisions are indeed constitutional.

Recently, Outten & Golden Whistleblower attorney Dave Jochnowitz assisted in drafting an amicus curiae, or “friend of the court” brief filed by The Anti-Fraud Coalition in United States ex rel. Wallace v. Exactech Inc., a U.S. District Court case that challenges the constitutionality of the FCA’s qui tam provisions.

Putting aside the case’s nuanced legal arguments for a moment, it’s worth taking a step back to appreciate how critical whistleblowers have been in the healthcare industry. To date, a wide range of healthcare workers, all with a keen eye for fraud, have helped return almost $39 billion to the government, while simultaneously protecting patients from harm and ensuring integrity in the field.

Many of these successes are cited in The Anti-Fraud Coalition’s amicus curiae brief, including:

In a qui tam matter that resolved for $22 million in 2022, a whistleblower alleged that two doctors had billed the government for services they never performed and for botched spinal surgeries, while also falsifying diagnoses to justify higher paying spinal surgeries. The whistleblower was instrumental in that case, and even got a call-out from the United States Attorney for the Eastern District of Washington, who expressed “special appreciation for our close collaboration and partnership … with the whistleblower …” 

Qui tam actions have not only stopped bad and dangerous billing practices, but also saved lives. In a 2013 case that one government investigator called “the most egregious case of fraud and deception that I have ever seen,” a qui tam whistleblower alleged that a doctor had submitted false claims for chemotherapy and other oncological treatment services—basically, treating patients for cancer with high-risk drugs and procedures when they might not have had cancer. The doctor ultimately pled guilty to defrauding Medicare and private insurance of $34 million, and was sentenced to 45 years in prison—and it all started with a whistleblower case under the False Claims Act.

Whistleblowers have also been instrumental in ensuring that the judgment of medical professionals and entities are not improperly influenced by big money. One of the key laws governing this activity is the Anti-Kickback Statute, which was passed, as explained by one federal court, “to prevent abuses of Medicare…and preserve the integrity of physicians’ medical judgment.” In one related lawsuit, a qui tam whistleblower alleged that a large pharmaceutical company paid kickbacks to workers to prescribe its drugs. While the government did not intervene in that case, the whistleblower litigated on behalf of the United States for almost a decade, ultimately settling for almost $900 million. In doing so, the whistleblower got a favorable mention from the U.S. Attorney for Massachusetts, who highlighted the case as “an important example of the vital role that whistleblowers and their attorneys can play in protecting our nation’s public health care programs.”

The False Claims Act remains one of the most important tools in the country’s fight against fraud. If you’re a healthcare worker who has spotted potential fraud or patient harm, and want to know your options, the experienced attorneys at Outten & Golden can help you understand the False Claims Act and other laws that incentivize and protect whistleblowers.

(*Prior results do not guarantee a similar outcome.)