Although healthcare whistleblowers aren't yet an endangered species, government antifraud officials and whistleblower lawyers say the number of cases filed continues to drop as the barriers to successfully pursuing federal False Claims Act suits are raised.
David Laigaie, a whistleblower lawyer with the Philadelphia office of Miller, Alfano & Raspanti who also defends healthcare providers, said he believes whistleblowers are losing ground.
Laigaie said most of the high-dollar whistleblower lawsuits already have been tried or settled.
"The easy, low-hanging fruit has all been picked," he said in Washington at last week's healthcare fraud conference, co-sponsored by the American Health Lawyers Association and the Health Care Compliance Association. Many of the newer cases are either very sophisticated, use creative law theories or are "what I think is garbage-cases brought by greedy, opportunistic whistleblowers who will jump jurisdictions to file," he said.
Assistant U.S. Attorney General Robert McCallum, who heads the civil division of the U.S. Justice Department, told the audience that the number of whistleblower lawsuits filed under the False Claims Act declined to 300 in 2001 from a peak of 535 in 1997. McCallum said the government relies on whistleblowers to unearth complex healthcare fraud cases.
In spite of the declining number of cases, McCallum said recoveries from healthcare cases have reached $850 million to date this year, compared with $1.2 billion in recoveries in 2001. About 47% of all False Claims Act suits are related to healthcare.
Cases are becoming increasingly complex, involving such issues as Medicare cost reports, prescription drug pricing and inadequate care, he said.
He said he cannot explain the decline in filings. "It may reflect the impact of compliance programs," he said. "The industry is doing a better job of policing itself."
Karen Shedd Guarino, a healthcare defense lawyer with the Atlanta firm of King & Spalding, said U.S. attorneys general and Justice Department lawyers have discouraged some lawyers from filing frivolous whistleblower lawsuits.
"The government has grown more sophisticated and assistant U.S. attorneys recognize bad cases better now," Guarino said.
So far this year, the Justice Department has intervened in 34 whistleblower lawsuits and declined to join 88. In 2001 it joined 60 suits and declined 170, McCallum said. Historically, the government has intervened in only about 20% of cases filed, he said.