By Russell Paul
Can a False Claims Act case go forward where the only evidence of whether the services at issue were medically necessary are two competing and opposing medical opinions?
In a prior blog, we discussed recent holdings in AseraCare I, AseraCare II and Vista Hospice. The main issue addressed in those cases was whether a Relator can maintain a case under the False Claims Act solely when there are two conflicting medical expert opinions, and no other evidence, on whether the services at issue were medically necessary. This occurs when Relator retains an expert that says the medical services provided were not medically necessary and the defendant’s medical service provider or its retained expert says the exact opposite – that the service was medically necessary.
In the cases cited above, the district courts held that such a difference of medical opinion between Relator’s expert and defendant’s is insufficient to create a triable issue of fact as to whether the services (in these cases, hospice services) were medically necessary and whether the resulting Medicare claims were false under the False Claims Act. These courts required a showing of something more – that the claims submitted to Medicare were objectively false.
The AseraCare Standard
Succinctly stated, the AseraCare standard is that “a mere difference of opinion between physicians, without more, is not enough to show falsity” and that “the opinion of one medical expert alone cannot prove falsity without further evidence of an objective falsehood” (AseraCare II, 176 F. Supp 3d at 1283 (emphasis in original)).
Although this standard has been criticized, ignored and refuted by other cases, as set forth in a prior blog article, this blog attempts to define “objective falsity.”
Objective Falsity Under AseraCare
Under the AseraCare standard, for a claim to be objectively false, there must be objectively verifiable facts that contradict a physician’s subjective clinical judgment that the service at issue is medically necessary. In Aseracare, the service at issue was hospice care, and the physician’s subjective clinical judgment at issue was a physician’s opinion that a patient had a terminal prognosis and was therefore appropriate for hospice. See Vista Hospice, 2016 WL 3449833, at *17.
Evidence of such objectively verifiable facts that a jury could consider to determine that a claim is objectively false would include “evidence that any of the documents in the patients’ medical records were false; that any information on which the certifying physician relied was incorrect or false; or that the clinicians withheld information from the certifying physicians.” AseraCare II, 176 F. Supp. 3d 1282, 1285 (N.D. Ala. 2016) It would also include “evidence that a certifying physician was not, in fact, exercising the physician’s clinical judgment when certifying a patient, because the physician never reviewed the patient’s medical condition nor saw the patient, or that the physician did not actually believe that if the patient’s disease ran its normal course, the patient had a prognosis of six months or less.” Vista Hospice, 2016 WL 3449833, at *17.
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 U.S. v. AseraCare, Inc. (“AseraCare I”), 153 F. Supp. 3d 1372 (N.D. Ala. 2016), appeal docketed, No. 16-13004 (11th Cir. May 27, 2016), U.S. v. AseraCare, Inc. (“AseraCare II”), 176 F. Supp. 3d 1282 (N.D. Ala. 2016), appeal docketed, No. 16-13004 (11th Cir. May 27, 2016), and U.S. v. Vista Hospice Care, Inc., 2016 WL 3449833, at *18 (N.D. Tex. June 20, 2016), reconsideration denied sub nom. U.S. ex rel. Wall v. Vista Hospice Care, Inc., 2017 WL 5483747 (N.D. Tex. Nov. 14, 2017), and appeal dismissed sub nom. U.S. ex rel. Wall v. Vista Hospice Care, Inc., 2018 WL 3054767 (5th Cir. Jan. 11, 2018)