Whistleblower Protections in Health Care Fraud Cases

An attorney who handles False Claims Act healthcare fraud cases, answers questions about the whistleblower protections that may be available in different kinds of health care fraud cases.

Who is typically the whistleblower in health care fraud cases?

Tony Munter: It is typically somebody within the institution who sees and understands the various business relationships and can explain what’s wrong. An individual may have one bad experience, but that experience may or may not have anything to do with fraud. They could go to the doctor, the doctor could provide a perfectly legitimate service, and the patient could still not get better; but that doesn’t make it fraud. Even medical malpractice is not fraud; medical malpractice is a totally different issue.

Someone might go in and have a terrible experience, but that doesn’t mean that the doctor, the hospital, or the drug company deliberately defrauded the government. This kind of case usually requires somebody on the inside of an institution or a company who can tell you what the routine practice is that’s being employed to defraud the government, Medicare, or Medicaid, or any other government program.

Are whistleblowers subject to retaliation from their employers?

Sometimes they are. If they report internally, they can easily become the subject of retaliation. The False Claims Act provides the opportunity to sue for retaliation damages. People like to refer to that as a “whistleblower protection law.” It doesn’t necessarily prevent anyone from retaliating against a whistleblower, but it does provide the opportunity for a whistleblower to sue for damages and wrongful termination within the context of a False Claims Act case.

Are there financial incentives for a whistleblower to expose fraudulent activity?

Tony Munter: The False Claims Act provides whistleblower rewards. Those rewards range from 15 to 25 percent under the federal law if the government decides to join the case and there is any type of recovery. The rewards range from 25 to 30 percent if the government does not join the case but the whistleblower decides to pursue it anyway and they are successful. The vast majority of successful collections happen when the government does decide to join the case. Those are in the 15 to 25 percent range, which can be a lot of money because government contracts are large.

With damages, the settlements can be relatively large compared to other types of legal actions. Usually, in a legal action, a plaintiff has to show how they personally were damaged in order to collect money. Under the False Claims Act, the whistleblower is collecting a reward for the government’s damages, and the government’s damages can be very large.

How is the identity of the whistleblower protected if they do file a claim?

Tony Munter: The False Claims Act cases are filed “under seal.” That means that if you provide the government with information and you provide the court with a complaint, that is all done in secret. For an initial period of time, nobody is going to know who filed the case, or even that a case has been filed. It does not remain a secret forever. At some point the case will be unsealed, but that can take a couple of years.

In addition, if the government is investigating your case and there is information that the government is asking about that only you might know, the defendant could possibly figure out who the plaintiff is, but, initially, a case can be filed and the identity of the plaintiff is kept secret. The government is usually very good about trying to protect the identity of the plaintiff for as long as they can.