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False Claims Act Kickback Whistleblower Wins Appeal

By George Khoury, Esq. on February 06, 2019 | Last updated on March 21, 2019

A recent case out of the First Circuit Court of Appeals provides some much needed clarity on the relationship between the False Claims Act and the federal anti-kickback statute related to Medicare claims.

In short, a fired management-level employee's whistleblower retaliation case was revived on appeal due to the fact that a violation of the anti-kickback statute basically begets a False Claims Act violation, and that to prove retaliation, a plaintiff need not prove an actual violation. As the court explained, a plaintiff doesn't need to complain about "fire," but rather just the existence of "smoke."

Guilfoile v. Sheilds

The underlying case involved a health care company which was paying a consultant for referring hospitals to the company's service. One of those hospitals was a University Hospital, which the plaintiff believed received federal funds and processed Medicare claims. As the plaintiff explained to the company owner, he believed that the arrangement with the consultant violated the federal anti-kickback statute. The plaintiff recommended taking certain actions, but the company's owner refused.

Shortly thereafter, the plaintiff was terminated. After he was terminated, he told the company board about the problems he suspected. Then, he was sued by the company, and he then filed a countersuit of his own alleging retaliation.

At the district court level, his case was dismissed for failing to plead with particularity. However, on appeal, the circuit panel questioned whether the plaintiff had adequately raised these issues to the district court, but ultimately found that the plaintiff's request to file a second amended complaint should have been allowed as it was supported by sufficient facts to support a retaliation claim.

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