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ACA and FCA Litigation
Claims brought under the False Claims Act (FCA) are a significant part of the federal government's efforts to combat Medicare and Medicaid fraud and abuse. According to statistics published by the United States Department of Justice (DOJ), the federal government received $1.6 billion in FCA recoveries in 2009, and $2.5 billion in 2010. It seems unlikely that these figures will decline in the future. The majority of these recoveries (85% in 2009 and 78% in 2010) were in cases brought under the FCA's qui tam provisions, which essentially allow an individual (called a relator) to file suit on behalf of the government. The amounts recoverable in an FCA case can include treble damages and significant statutory penalties, and can also include an award of costs and attorneys' fees. A qui tam relator is potentially entitled to receive up to 25% of the amount recovered if the government intervenes and essentially takes over the case, and up to 30% of the amount recovered if the government does not, plus costs and attorneys' fees.
Med-Mal Attorneys Take Heed
Despite the obvious economic significance of these claims and their prominence on the health care landscape, lawyers whose practices are focused on individual medical malpractice cases have traditionally had little involvement with the FCA and its qui tam provisions, or with the complicated health care funding issues that can potentially give rise to these claims.
That might be changing, for two reasons.
First, the Patient Protection and Affordable Care Act (ACA) changes federal law governing FCA claims, in a way that gives individual plaintiffs new power to use information learned in discovery in a civil case as the basis for a qui tam case brought under the FCA.
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