Philadelphia whistleblower lawyer Marc Raspanti offers this challenge: Walk into a crowded room and try to identify a typical whistleblower.
"Companies look for someone gregarious or (for) angry, complaining people," says Raspanti, a partner at Miller, Alfano & Raspanti.
"But they're seldom right. They paint pictures of a greedy person out to make money. But if you think you know who a potential whistleblower is, you're probably wrong."
Nonetheless, Raspanti says, the whistleblowers he's known share some traits.
"They tend to be people who see the world in black and white and are uncomfortable with shades of gray, people who don't believe in fudging," he says. "The true whistleblowers are well-informed people who are knowledgeable about their jobs and want to be team players. They are often labeled as loners, because they're private people, but they seem to be drawn to large, stable organizations."
When values collide. Though no study about healthcare whistleblowers has been done, these individuals seem to be similar to U.S. Defense Department whistleblowers of the 1980s who have been profiled in several studies, lawyers say.
One common trait, Raspanti says, is that whistleblowers collide with their value systems when they observe problems and their managers or colleagues ignore those observations. "When they see something wrong, it tears them up," he says. "They're incapable of putting it under a rug."
Washington lawyer Lisa Hovelson, former executive director and general counsel of Taxpayers Against Fraud, a whistleblower resource organization, says the whistleblowers she has met want fraud, as they perceive it, to stop.
"Most have already tried different means to get it stopped and have not been successful," says Hovelson, who worked on a 1986 amendment to the federal False Claims Act that paved the way for whistleblower suits while a staffer for Sen. Charles Grassley (R-Iowa).
"It's rare to talk to one who didn't try to get action from management or the government," Hovelson says. "They felt like the information that they were telling folks was going into a black hole."
Healthcare defense lawyer Neil Caesar, president of the Health Law Center in Greenville, S.C., says whistleblowers must have a well of anger that fuels the passion needed to withstand the arduous legal process, which can drag on for years.
"Most wished sincerely to resolve the situation without going to the government," Caesar explains. "Most seem to be good people trying to make the best of a bad situation."
Alike yet different. Lewis Morris, HHS' assistant inspector general for legal affairs, says whistleblowers have diverse backgrounds, identities and careers.
"Some were career employees who after 15 years decided to give up," Morris says. "One (whistleblower's) decision was motivated by a religious experience. Another was fired after blowing the whistle. Some were moved largely by personal profit. They range from executives and middle managers to lowly billing clerks. The vast majority, though, are motivated by a desire to do the right thing."
James Sheehan, assistant U.S. attorney in Philadelphia's civil division, says whistleblowers' personalities vary tremendously. "The joke is they're watchers of "C-Span 2" because "C-Span 1" is too exciting," he says. "Many are highly conscientious people who believe in following the rules exactly right. Some are dedicated doctors and nurses who see quality of care being compromised. But there (are people in) another group who think they're going to get a lottery ticket for free, and the lottery will cash in in two years. Most have no idea what they're getting into."
A few pay a high price for their decisions, quitting jobs, moving their families or financially downsizing their lives. Careers and marriages often suffer, Sheehan says.
Greed, revenge. Houston healthcare lawyer J.D. Epstein, a partner at Vinson & Elkins, says the opportunity to strike it big motivates most whistleblowers.
"Some people really believe that they're doing good, but I think the great majority are influenced by money," he says.
"Some are seeking revenge. They've been fired, are disgruntled, unhappy and unappreciated," Epstein says. "They feel that no one is listening to them. I haven't met one person who has been in it for truly altruistic motives."
The False Claims Act, enacted in 1863 and also known as "Lincoln's law," was intended to halt the sale of wormy flour and defective ammunition by Union Army suppliers during the Civil War.
Under the law, however, motivation is not a factor. The only considerations are the knowledge of wrongdoing against the government and a willingness to report it and share any reward. Lincoln observed, "It takes a rogue to catch a rogue."
Whistleblowers sue on behalf of the government and can receive up to 25% of any recovery if the U.S. government intervenes or up to 30% if the government does not take the case. In some qui tam cases, as they are known in legal jargon, whistleblowers have received rewards in the millions of dollars, prompting some people to question their motivation.
Regardless of motivation, most healthcare lawyers and hospital association officials concede that whistleblowers have played a large role in the stepped-up enforcement of healthcare fraud.
Joseph DiGenova, outside counsel for the American Hospital Association and a partner at DiGenova & Toensing in Washington, says whistleblowers have pushed hospitals and healthcare organizations to develop compliance programs. Only a few years ago, the compliance industry didn't exist. Today healthcare consulting firms estimate the industry generates $600 million to $700 million per year in business.
The explosion of healthcare whistleblower lawsuits, from a dozen in 1987 to more than 200 last year, has publicized the False Claims Act, spurred an increase in compliance programs, recovered millions of dollars for taxpayers and deterred providers from committing fraud.
"Whistleblowers have had a tremendous impact in several regards," says San Francisco lawyer Stephen Meagher of Phillips & Cohen, who specializes in whistleblower suits. "They bring in information that might not otherwise be uncovered. They are the proverbial insiders who know what went on at a board meeting. They have been a powerful motivator for companies to put in place effective compliance programs and have had a tremendous deterrent effect."
Epstein agrees. "I know that our clients are much more conservative and forward thinking today. They plan better and make sure they're right," he says. "We're seeing much more self-disclosure."