The Supreme Court today declined to review lower court rulings on two cases involving “qui tam” whistleblower cases brought under the False Claims Act, including one that involves the issue of whether doctors’ medical opinions can be considered ‘false’ and has gotten a lot of attention as it has wended its way through the courts.
To provide some perspective on the Supreme Court’s decision, here are comments from Claire Sylvia, a whistleblower attorney and partner at Phillips & Cohen LLP. She also is the author of a leading treatise on the False Claims Act, The False Claims Act: Fraud Against the Government (West 2016), which often is cited in court rulings. She was not involved in the qui tam cases that the Supreme Court declined to review today.
Care Alternatives v. United States, et al., No. 20-371
“It’s not surprising that the Supreme Court did not take cert in the Care Alternatives case and let stand the circuit court ruling that physician medical opinions can be considered false in certain instances,” said Claire Sylvia, a whistleblower attorney and partner at Phillips & Cohen LLP. “For instance, doctors’ opinions can be considered false if the doctors do not actually hold those opinions or ignore evidence that their opinions are not reasonable. The courts have long said in other types of cases that opinions can be considered false.”
“This petition to the Supreme Court was a longshot that missed its mark, as it should have,” Sylvia said. “The petitioners presented the question to be reviewed as whether honestly held medical judgments could be false based solely on reasonable difference of opinion among physicians, but that was not the holding of the case in the Third Circuit, and it is not a question that needed resolving by the Supreme Court. Nor is there a split between the circuit courts on the issue of ‘objective falsity’ as some have maintained.”
Falsity is an important element to prove in False Claims Act cases. But the law, which protects the government against fraud, also requires that the defendant acted “knowingly,” which means having actual knowledge that claims or statements were false or acting in reckless disregard or deliberate ignorance of whether they are false.
“Honestly held reasonable opinions are not subject to the statute, because the person expressing them is not acting knowingly,” Sylvia said.
US ex rel. Concilio de Salud Integral de Loiza, Inc. (CSILO) v. J.C. Remodeling, Inc., No. 20-781
“The Supreme Court’s decision not to review the CSILO case is also not surprising,” Sylvia said. “The case has limited impact on future False Claims Act cases because it dealt with a situation where the plaintiff did not present a calculation of damages during the discovery phase of the case, and the court did not allow it to introduce that information at trial.
“Although the defendant was found liable for violating the False Claims Act and the court awarded a penalty, no damages were awarded as a result of the lack of a record of damages,” she explained.
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