This is a question or concern we hear a lot: can I file a healthcare or government fraud case without any tangible evidence?
Yes! This happens quite a lot, actually. Many of our clients who witnessed fraud firsthand have no evidence to support it. Often, whistleblowers are surprised to have had their employment terminated as a result of their investigations and complaints. They believe they have discovered a mistake, not fraud, and they present their findings internally with expectations that their superiors will acknowledge and correct the error.
Instead, they are unceremoniously escorted out of the building. Needless to say, gathering evidence for a lawsuit is not a consideration until it is too late to do so.
Physical evidence or not, if you spot “mistakes” that could actually be fraud, it never hurts to get a confidential evaluation from an attorney.
Evidence Desired, Not Required
In a perfect world, our clients would have a mountain of evidence that we can gift wrap and present to the government. Good evidence simplifies matters tremendously. The more evidence in your possession, the more likely that the government can prove its case, intervene in your case, and settle the case. Plus, it can increase the relator’s share.
But it is not required to file a False Claims Act case. Nor is it an automatic death knell for your lawsuit. The government has various ways of obtaining much of the necessary evidence itself. For example, it can collect Medicare billing data from CMS. It can issue a Civil Investigative Demand to a defendant for documents. It can interview witnesses to build its case.
We have had the government intervene and settle in many of our cases where our clients had nary a scrap of evidence to provide besides their own knowledge and testimony.
What evidence do I need?
Simply put, you only need enough evidence to plausibly make the allegations in your complaint and to set the government investigation on the right track. A False Claims Act case alleges that someone is committing fraud against the government. These are serious accusations, and the facts you are alleging are sworn statements.
Pursuant to Federal Rule of Civil Procedure 11, you may file a lawsuit if “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” It is not enough to merely guess that fraud is occurring.
“There is no way they got the government contract without cheating.” “That guy has way more money than his peers; he must be getting a kickback or committing fraud somehow.” “That doctor only refers patients to my competitor; I bet they have an illegal arrangement.” These are all arguments we have heard before from potential clients. But without any knowledge or evidence of fraud, it would be unethical to file this lawsuit.
Moreover, if you are wrong, you may be subject to sanctions under Rule 11 or under the False Claims Act.
But this does not mean you have to know every detail of the fraud, either. Rarely do whistleblowers have access to all the pieces of the puzzle. For example, a nurse may know that her doctor is circling the wrong billing codes on a superbill and entering inaccurate information, but she may not know how the billing is actually being performed. Looking back at Rule 11, she can plausibly allege this claim because it “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”
Even without any documentary evidence in hand, she can bring the case to the government, who can obtain the claims and compare them to the patient files.
If the government is not convinced that the whistleblower has any real knowledge of fraud occurring, there is no obligation to investigate the claim. If the government investigated every unsubstantiated tip it receives, there would be few resources remaining for the real cases.
It is up to experienced whistleblower lawyers to know what information will help the government in its investigation and to get that from their clients or through independent investigation.
There are gray areas, and it takes good qui tam counsel to know when they have sufficient information to file a case. Most False Claims Act lawyers work on contingency, meaning they have little incentive to file cases that are unlikely to result in an award. They also have reputations to consider, as nobody wants to be known as the lawyer who cried wolf, filing qui tam cases alleging fraud only to discover that no fraud occurred.
How much evidence do I need if the government declines to intervene?
The short answer is that you need enough evidence to not only plausibly allege fraud but to do so with specificity. Under Federal Rule of Civil Procedure 9(b), courts require not only knowledge of the underlying fraud, but that false claims were submitted to the government for reimbursement.
Thus, in the example of the nurse above, there is a high probability that her case will get dismissed for lack of specific knowledge that the falsified documents resulted in false billing.
Still, this does not mean that a whistleblower has to have tangible evidence. If the relator worked in the billing department, for example, and she had the opportunity to compare the patient files with the resulting billing, she could allege with specificity. While a specific example of a false claim is preferred (a claim was submitted for X, Y, and Z on this date for that patient), courts have permitted cases to go forward based on an “indicia of reliability” standard. This means that the whistleblower has enough knowledge that the court is convinced she is not merely guessing at any particular element. Then the relator can get what she needs in discovery to prove her case.
Contact a False Claims Act Attorney Today
In sum, it is best to contact False Claims Act attorneys before you leave your job so that they can guide you in your investigation. They can tell you what evidence is most needed to support your case, and have you obtain it in a way that limits your liability for countersuits.
But if it is too late for that, don’t assume that means you cannot file a case. The government wants to know whenever fraud is occurring, and it would rather do the digging itself than continue to lose money to bad actors.
Are you a potential whistleblower who needs specific guidance on this topic for your situation? Call Bracker & Marcus LLC at 770-988-5035 to schedule a free evaluation.