When we were kids all of us had a defining moment when we were given the opportunity to tell the truth. Most of us made the right the choice. Some, however, thought they were smarter than their teacher /parent/ cops and figured they could get away with whatever they were suspected of doing. Those same dynamics are still at play in today’s whistleblower cases.
Under the federal False Claims Act, a company that commits a fraud against the government or a government funded program is subject to damages, triple damages and a monetary penalty of up to $11,000 for each “false certification” (lie) they make. Defendants that voluntarily come forward, however, get much better deals but few come forward and self report.
Yesterday I wrote a post about Dr. David Pon, a Florida Ophthalmologist convicted of 20 acts of healthcare fraud and now facing life in prison. Pon falsely diagnosed patients with macular degeneration and performed unnecessary laser treatments on them. Pon deserves prison for his actions but there is a story behind the story.
The Orlando Sentinel reported last week that Pon had the opportunity to come forward and settle the Medicare fraud charges civilly for $7 million. No prison! He evidently got greedy and decided to roll the dice. He lost and as I write this now, is in custody and awaiting sentencing. He may well spend his life in prison.
On the tail of that story is a story from Delaware, one with a much happier ending.
St. Francis Hospital in Wilmington, Delaware recently discovered their rehabilitation unit was charging Medicare and Medicaid for inpatient services that were not medically necessary. We don’t why or how this billing fraud was allowed to continue for 4 years but the important point is that they stepped forward before a whistleblower complaint was filed.
By coming forward voluntarily, St. Francis was able to avoid triple damages. They also turned a bad event into some fairly good publicity. Delaware’s United States Attorney Charles Oberly III said last week, “The government was able to recover monetary damages for compliance issues that might not have been revealed without St. Francis’ self-disclosure, and St. Francis can move forward without concern about lingering liabilities related to this conduct.”
St. Francis still must pay for its prior misconduct but the penalties are much less.
Are we worried that St. Francis’ actions will start a trend? Actually no.
Most whistleblowers try to fix misconduct internally before contacting a lawyer and filing a False Claims Act suit. That means the primary motive for the average whistleblower is justice, not money. Unfortunately, the corollary is not true. Greed keeps most healthcare professionals from self reporting.
Because this was a self reported event, there is no whistleblower involved. In general, however, whistleblowers are eligible to collect between 15% and 30% of whatever the government collects from wrongdoers.
To qualify for an award, one must have original source or inside information about fraud involving a government program. Medicare and Medicaid, most residential mortgages, defense contracts and highway spending all qualify.
MahanyLaw – America’s Whistleblower Lawyers