A Wisconsin lawyer and physician have both been admonished for their actions in a Medicaid fraud case (whistleblower suit) pending in a Milwaukee federal court. The lawyer on the case, Rebecca Geitman, was ordered to pay attorneys fees of $26,000. Those sanctions and fee awards unfortunately threaten to overshadow the larger and important legal issues in the case.
Dr. Toby Watson teamed up with lawyer Rebecca Geitman in an attempt to bring federal false claims act cases against physicians who were billing Medicaid for off label medications. Although once the FDA approves a drug a physician can prescribe that drug for “off label” uses, Medicaid generally won’t reimburse for such uses.
Dr. Watson advertised looking for kids who were treated with off label drugs. Ultimately he acquired the records of a minor with the initials N.B. (privacy concerns kept the court from naming the child). After finding 49 off label prescriptions written for the child over several years, Watson and Geitman filed their Medicaid fraud suit. The U.S. Attorney’s Office declined to intervene in that suit. Normally a case is dismissed at that point but federal law allows a private attorney to function as a private attorney general and prosecute the suit.
Federal false claims act cases can be filed whenever there is a loss to taxpayers. Medicaid fraud qualifies as both the state and federal government subsidize the Medicaid program. Under the false claims law, whistleblowers are entitled to a percentage of whatever is collected by the government. Although the actual damages (amount paid by Medicaid) in this case would be quite low, the law also allows damages to be calculated on the basis of each false certification provided to the government. That alternative calculation is $11,000 per false claim. Multiplied by 49 prescriptions and the potential damages soon exceed $500,000.
The trial judge tossed the suit saying Dr. Watson failed to name an expert witness. The treating doctor, who was being sued, claimed that an expert witness was necessary and that Watson’s failure to name one fatally flawed his case.
Dr. Watson appealed. In a decision last week from the 7th Circuit Court of Appeals, the trial judge was reversed meaning Dr. Watson’s Medicaid fraud case will now be reopened.
The appeals court said that an expert is not necessary to prove whether a treating physician knew whether the prescriptions could properly be submitted to Medicaid. In a 21 page ruling, the appeals court extensively discussed the arcane definitions of off label uses for drugs.
Generally, the Justice Department will not intervene in a suit where actual losses are less than $500,000. While there are exceptions, we find government prosecutors are stretched too thin to take smaller cases. Taking a Medicaid fraud case where the actual damages may only be a $1000 is not a good use of the court or government’s time.
The alternate damage theory of calculating damages “per false claim” makes the cases more economically feasible. A private attorney seeking to take such a case, however, might be dissuaded if he or she knew that an expert was necessary. Why? Because medical experts frequently charge $5000 or more for their services.
Although the appeals court reinstated the case, the three judge panel was clearly not happy with Dr. Watson or attorney Geitman. The court noted, “Before concluding, we feel compelled to note that nothing in this opinion should be read to countenance the pre-suit actions of either Watson or his trial counsel: they dragged blameless parties into court unnecessarily and sought a medical release by representing that Watson was going to treat N.B. – a total falsity. Invoking its inherent power…the district court levied monetary sanctions against the pair for skirting the line of their respective professional responsibilities… Despite the ruling in Watson’s favor today, we hope that the district court’s sanctions will dissuade professionals from stooping to such unsavory tactics in the future.”
As false claims act whistleblower lawyers, we take those words to heart. While we take these cases with a genuine desire to help stamp out fraud, we are mindful of the old adage that “two wrongs don’t make a right.” In other words, the conduct of the whistleblower should not stoop to the conduct of the person committing the Medicaid fraud or other improper action.
Healthcare fraud, including Medicare and Medicaid fraud, costs taxpayers billions each year. Many people go without necessary care because fraud has depleted the availability of healthcare dollars. And some patients are injured or even killed when doctors put profit ahead of patient care. Fortunately, laws such as the federal and state false claims act laws provide a powerful incentive for whistleblowers to come forward and report fraud.
Under the federal False Claims Act, whistleblowers with inside, non public information about fraud can receive up to 30% of whatever the government collects based on their information. Typical awards are 20%.
If you wish to become a whistleblower and think you have a false claims case, give us a call. We represent whistleblowers and help them stop fraud and collect the largest award possible.
Mahany & Ertl – America’s Fraud Lawyers. Offices in Milwaukee, Wisconsin; Detroit, Michigan; Minneapolis, Minnesota; Portland, Maine and San Francisco, California. Services available in many jurisdictions.
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Posted by Brian Mahany, Esq.