When you think of lawsuits in the medical industry, some of the first you might think of are medical malpractice lawsuits. What is potentially more threatening, and more insidious, however, are crimes associated with healthcare fraud. In recent years, the government has begun cracking down on medical professionals, including pharmacists, for committing healthcare fraud. Some of the crimes frequently prosecuted are illegal billing under the False Claims Act (for either Medicaid or private health companies), overpricing or manipulating the price of drugs, and bribing doctors.
Indeed, it is the pharmaceutical industry that now has the highest payments for criminal actions brought under the False Claims Act. Charges against these kinds of companies are usually resolved only in criminal sanctions and fines – usually in amounts for several billion dollars. The problem is that many of these companies make a profit each year ten times the amount of the sanctions, so there is difficulty in creating an effective deterrent for these kinds of behaviors.
Many healthcare fraud investigations begin with an audit. These are not necessarily something to fear – sometimes audits reveal that unusual medical billing practices are the result of mistake and error, rather than intentional fraud. However, it is advisable to seek out medical advice in the event you are audited to ensure that you are aware of your rights and obligations under the law. Taking steps to prevent billing errors can also save you the stress of an external audit. Conducting your own billing audits or internal investigations can root out a lot of trouble and problems before they attract the attention of government regulators.
The False Claims Act has become increasingly powerful, due to the Department of Justice’ prioritizing enforcement of the FCA. The FCA also has a statutory treble damages division, allowing the government to force some incredibly lucrative judgments, as discussed above. In addition to federal rules, the medical industry might have to worry about state false claim statutes, usually focused on health care.
Another issue facing the medical industry is the increasing use and protection of ‘qui tam litigants,’ or whistleblowers. In 2015, these litigants filed more than 630 suits. The result is that the government spends fewer resources in having to investigate questionable billing or marketing practices, and can focus its energy on prosecuting the perpetrators of these crimes.
Crimes that affect the medical industry can be very detailed and document-driven. The rules of litigation can also be complex. An attorney should be sought as soon as possible to help you navigate the confusing waters of complex federal litigation. A good advocate should be familiar with the regulations imposed upon various healthcare parties, as well as provide a strategy to prevent or mitigate criminal activities by employees of a company, both before and during a criminal investigation is launched. A criminal defense attorney will demand the production of documents, and help you organize your documents to respond to any discovery requests. This can very often be the strongest defense against any allegations of Medicare/Medicaid fraud.
Finally, the burden is on the State to prove healthcare crimes. An attorney will be able to craft a defense, and prevent the prosecution from proving what it needs to prove. The State must show that the defendant acted with intent to engage in a fraudulent activity, knowingly and willingly took steps to provide false information in order to request monetary repayment, and that the medical professional actually received said payment. A competent attorney will be able to develop key strategies to rebut any arguments set forth by the State in their effort to convict suspects.