Nursing Letter

January 15, 2002

The following is a letter written by John R. Phillips to the editor of The Online Journal of Issues in Nursing.

Dear Editor:

I wanted to note, after reading "Whistleblowing as a Failure of Organizational Ethics," that nurses and others who choose to blow the whistle do have some job protection if they file whistleblower ("qui tam") lawsuits under the False Claims Act.

The law allows whistleblowers and the federal government to sue individuals, healthcare providers and others that are defrauding the government through Medicare fraud or other practices. To encourage whistleblowers to come forward despite the personal and professional risks that might exist, the law grants them 15 percent to 30 percent of the money the government recovers.

The False Claims Act can be used to remedy inadequate care if Medicare, Medicaid or other federal health programs are paying for that care. It would depend on the circumstances. Many states also have false claims law modeled after the federal one that can be used to redress similar practices involving patients covered by Medicaid and state health insurance programs.

Under the federal False Claims Act, a company cannot fire, demote, suspend or anyway discriminate against an employee investigating, initiating or assisting in a false claims case. If it does, whistleblowers are entitled to reinstatement, two times the amount of back pay plus interest, compensation for litigation costs and other compensation. They also can file wrongful termination lawsuits in state courts.

In our experience, most whistleblowers choose to file false claims lawsuits after it becomes obvious that management is deliberately following fraudulent or harmful practices, or because management fails to stop those practices after they are brought to its attention.

Potential whistleblowers should consult an attorney — most of whom, if they have experience with "qui tam" lawsuits, would review the case without charge. If the poor health care constitutes fraud under the False Claims Act, attorneys usually would accept the case on a contingency basis (meaning they get paid only if the case is successful).

For more information about the False Claims Act, whistleblowing and health care fraud, please see www.allaboutquitam.org.

Sincerely,

John R. Phillips
Phillips & Cohen LLP
2000 Massachusetts Ave., NW
Washington, DC 20036
Tel: 202.833.4567
Fax: 202.833.1815
www.phillipsandcohen.com