Physicians are being swept into more False Claims Act (FCA) lawsuits against hospitals and other organizations alleging Stark Law and Anti-Kickback Statute (AKS) and sometimes other violations, according to several attorneys who represent whistleblowers. More often whistleblowers are adding individuals as co-defendants to FCA complaints against corporations, a trend that’s consistent with the Department of Justice (DOJ) Individual Accountability Policy but has taken on a life of its own.^[1]

“It’s not just the hospital’s problem if [physicians] are getting overpaid. It’s their problem too,” said Marlan Wilbanks, a whistleblower attorney with Wilbanks and Gouinlock LLP. “Whistleblower attorneys are more inclined to name everyone responsible.” He said it happens more often when DOJ doesn’t intervene in whistleblower cases, an increasingly common phenomenon, although physicians sometimes show up in intervened cases as well.

“If you look at False Claims Act complaints from around 20 years ago, rarely would you see individuals named as defendants in the health care arena, but people realize it takes two to tango,” said attorney Jeb White, president of Taxpayers Against Fraud Education Fund. “Relators are increasingly naming physicians who are accepting kickbacks.” White thinks perhaps the focus on holding individuals accountable “is driving our side to increasingly name physicians.” DOJ wants to know which individuals are orchestrating the fraud scheme inside and outside the organization, but “it’s very rare to see the DOJ name them in the complaint,” he said. “I thought when the Yates memo came out, it would be a sea change, but I haven’t seen it,” said White, referring to the Individual Accountability Policy. “It is usually relators’ counsel who includes doctors as defendants.” That may change, however, because Deputy Attorney General Lisa Monaco late last year “reinstated” the Yates memo. “They are saying all the right things. I hope they follow through,” White said. “Without someone accepting a kickback, kickback schemes don’t work.” The Monaco memo stated, “To receive any consideration for cooperation, the company must identify all individuals involved in or responsible for the misconduct at issue, regardless of their position, status, or seniority, and provide to the Department all nonprivileged information relating to that misconduct.”^[2]