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Proving an objective falsehood is the key to success under the FCA



One of the keys to a successful qui tam practice is the ability to sort through potential cases and pick only the winners.  This is true of any contingency fee practice, but it is even more important in the FCA context.  This is because unlike other types of contingency work, most of the work on a qui tam must be done prior to filing.  So what does a qui tam lawyer look for?  One crucial element to the success of any case is the need for an “objective falsehood.”      


So what do I mean by an objective falsehood?  FCA cases are fact intensive, and the accompanying body of law is also extremely complex and nuanced.  An examination of some recent cases dealing with the issue of an objective falsehood will will illustrate the point.


For example, the need for an “objective falsehood” is explained nicely by the Fourth Circuit’s opinion in a case arising out of the war in Iraq–U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc. 525 F.3d 370, 376-377 (4th Cir. 2008).  This case also demonstrates that there is a difference between breach of contract and a false claim. 


The plaintiff’s allegations in Wilson were that the defendant falsely induced its contract with the government by promising to comply with “several general and relatively vague maintenance provisions, such as keeping vehicles ‘in a safe operating condition and good appearance.’ “Specifically, the relator in Wilson alleged that the claims submitted to the Government for vehicle maintenance were false because the defendants had failed to comply with these contractual requirements.  For example, plaintiff alleged that by failing to “change the oil or replace the fuel filters and damaged windshields of the convoy trucks” the defendants had failed to keep them “in a safe operating condition and good appearance.”  However, as any Virginian can tell you, it is far from certain that every crack in the windshield of a truck contraindicates a “safe operating condition.”  As a result, the plaintiff’s allegations failed to show an “objective falsehood” because of the imprecise nature of the contractual requirements.  


       A recent decision from the Eastern District of Virginia involves a qui tam plaintiff in the health care context who made similar allegations of a non-objective falsehood and received the same result.  In U.S. ex rel Martinez v. Virginia Urology Center, P.C., 2010 WL 3023521, 1 (E.D.Va. 2010) the relator alleged that she raised a number of concerns about record keeping and treatment practices at a hospital.  She alleged that claims had been submitted to Medicare without the required certification, and that certain doctors had failed to follow an anesthesia procedure known as “the seven steps” that was required for reimbursement of the anesthesia services by Medicare.  Further, she alleged that during lithiroscopy procedures, surgeons were neither physically present nor available to lend immediate assistance.  The relator also alleged that these types of claims were submitted to Medicare and were paid by Medicare, and that the failures rendered the claims submitted false.


These are not claims that can ultimately be proven to be objectively false.  Courts dislike—and for very sound reasons—FCA cases that do not contain an objectively false claim.  It is easy to say that an objectively false claim is the first thing a lawyer should look for in sorting through FCA cases, but this can be a difficult rule to apply; moreover, it further supports the need for careful and thorough screening of cases in the first place.         


 

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