Why Doing the Right Thing is Viewed as Wrong
“The Negative Stigma with Being a Relator”
by Sean Weiss, Partner & VP of Compliance
Charles Simmons said, “No man has a right to do as he pleases, except when he pleases to do right.” I have spent the last 20 of my 25-years working in health care assisting in the defense of doctors, hospitals, Home Health Agencies, Hospice Facilities, and ASCs as I always felt the playing field was not level between the government and providers/health care organizations. That is why I continue in my crusade to ensure due process for clients and the clients of the more than 26 law firms I am or have been contracted with. There is no doubt through the cases our team has assisted with defending that the government, their contractors, or the auditors within the Special Investigative Units (SIU) at the commercial payers have at times (more often than not) deployed questionable tactics, stretched the interpretations of guidelines, or prosecutors have in some cases abused prosecutorial authority/discretion. It has been the job of our team over the years to function as objective, independent investigators and/or subject matter experts (SMEs) to ensure the facts are presented during deposition or trial to help secure summary dismissals, not guilty verdicts, or plea agreements that didn’t completely destroy a provider or the health care organization based on erroneous errors made versus those acting in deliberate ignorance, reckless disregard or knowingly submitting false claims.
Representing “Whistleblowers” is big business since those who bring the action against their employer or former employer stand to benefit with up to 30% of the recoveries when monetary sanctions exceed $1 Million. In 2018, The Department of Justice (DOJ) recovered $2.9 Billion under the False Claims Act of which $2.5 Billion was for health care fraud. Of that amount, $2.1 Billion was based on Qui tam cases. Again, big business. Here are just a few examples of successful “Whistleblower” cases from Phillips & Cohen:
|GLAXOSMITHKLINE – $3 BILLION||PFIZER INC. – $2.3 BILLION|
|TAP PHARMACEUTICALS – $875 MILLION||HCA INC. – $631 MILLION|
|DAVITA HEALTHCARE PARTNERS – $400 MILLION||QUEST DIAGNOSTICS – $302 MILLION|
|TELEDYNE INC. – $115 MILLION||NATIONAL HEALTH LABORATORIES – $110 MILLION|
|MORE THAN 130 HOSPITALS – $105 MILLION||QUORUM HEALTH GROUP – $85.7 MILLION|
|ORTHO-MCNEIL JANSSEN PHARMACEUTICALS AND ORTHO MC-NEIL PHARMACEUTICAL LLC – $81 MILLION||COMMUNITY HEALTH SYSTEMS HOSPITALS – $75 MILLION|
|MEDTRONIC SPINE LLC – $75 MILLION||NOVO NORDISK – $60 MILLION|
But, what about the relator(s) in a “Whistleblower” case who acted with integrity and in accordance with their internal compliance program that is supposed to be “Effective” and prevent retaliation against those who report potential issues or concerns? More often than not those seeking to do the right thing become the enemy of the organization(s) they’re trying to protect resulting in being shunned, stripped of their job duties, held back for promotion, or given a derogatory performance review preventing them from receiving salary increases or bonuses. I have even seen in cases over the years where someone was terminated for doing the right thing (these often result in wrongful termination suits) because it exposed the organization and its leaders of wrong-doing. It is true for those of you considering becoming a relator that once your qui tam case is unsealed, your fate in the industry could be sealed, meaning your ability to gain future employment is near impossible because of the fear potential employers have that you will blow the whistle on them if you uncover something they’re potentially doing wrong.
This thought process on the part of potential employers is neither fair nor morally right in my opinion and may violate some employment laws (you may want to check with your Director of Human Resources or General/External Counsel) since we work in an industry that requires compliance to ferret out Fraud, Waste and Abuse. It is important to remember in a “Whistleblower” case that neither the government nor the relator are the plaintiff. The way it works is the federal False Claims Act authorizes qui tam actions against parties who have defrauded the federal government (31 U.S.C. § 3729 et seq.). In my opinion if you have a potential employee who was a relator applying for a job, research the facts of the case (with the immediate availability of information on the world wide web you can do your diligence) to determine whether or not it was justified and what the outcome was (i.e. guilty verdict resulting in criminal or civil penalties, debarment, exclusion, sanctions, etc. against those found guilty). If the relator was successful in their action and those who broke the law were punished, why should the person who did the right thing be shunned or prevented from continuing to work in an industry in which they have made a career? Ask yourself, wouldn’t you want a person who wants things to be done correctly and compliantly working for your organization? If you have to think about that then maybe you should take a closer look at what you and those in your organization are doing that caused you to pause on that last question. If I were running a large health system or physician group practice and someone applied for a job who was a relator in a case, I would research all the facts and then conduct an honest interview with the potential employee to understand the steps they took to rectify the situation before they reached the end of their rope and sought legal recourse against those who potentially violated the law. If the action they brought was dismissed or the defendant(s) were found not guilty, then of course that would cause me pause on whether or not this candidate was someone I wanted working in my organization.
At the end of the day, we all have an obligation to do the right thing and sometimes doing the right thing makes us uncomfortable or can be painful. But in the end, we are doing our part to preserve the integrity of our health care system. While I and my team work to defend health care providers in qui tam actions, Health Care Fraud or False Claims Act cases, it should be made clear that we never defend those who intentionally broke the law by creating an elaborate scheme in the hopes of receiving remunerations they were not entitled to. Our representation and expert services are deployed in cases where mistakes (erroneous) were made or where a disgruntled employee or former employee in an attempt at retaliation has leveled accusations that are unsubstantiated or unwarranted, and preserving the integrity of the provider(s) and financial viability of the organization is critical. In the words of Abraham Lincoln, “Let us have faith that right makes might; and in that faith let us dare to do our duty as we understand it.”