Wisconsin whistleblowers await federal judge’s decision

Wisconsin whistleblowers who called attention to alleged Medicare fraud may be among those in multiple states who may soon be affected by how or whether US Department of Justice prosecutors can come up with additional evidence to comply with a federal district court judge’s order. The judge has stated that she may throw out the whistleblower lawsuit unless the Justice Department can come up with more than expert opinion testimony. 

The whistleblower lawsuit is being prosecuted under the United States False Claims Act. The Justice Department claims that a hospice provider submitted false payment claims to Medicare, which – if the Justice Department’s reimbursement claim is any indication – amounted to millions of dollars. When combined with additional fines and penalties being sought by the government are factored in the total amount claimed against the defendant to be more than $200 million.

An interesting characteristic of this case is that the judge’s warning of possible case dismissal is not based on a motion by either the prosecution or the defense, but rather is the result of her own initiative after a jury rendered a verdict in favor of the Justice Department. This has raised some debate among legal scholars as to whether her interpretation of the law – that disputed expert witness testimony is insufficient evidence to support a conviction for alleged Medicare fraud – is in fact correct.

Attorneys who represent Wisconsin plaintiffs in whistleblower claims need to know more than how to draft a complaint that supports all of the necessary elements of proof. As this case indicates, an in depth knowledge of the law itself and how differences of opinion on its interpretation can affect a client’s legal claim is also important, so that the plaintiff’s legal team can prepare the strongest argument on their client’s behalf and be prepared to deal with counter arguments  and variable interpretations of the law.

Source: AL.com, “$200 million at stake: Judge may dismiss whistleblower lawsuit against AseraCare hospice,” Kent Faulk, Nov. 7, 2015

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