A Business Litigation & False Claims Act/Whistleblower Firm

No Bright Line Rule For Medical Judgment Falsity

The Tenth Circuit recently held that there is no bright line rule that a medical judgment can never serve as the basis for a False Claims Act claim. In United States ex rel. Polukoff v. St. Mark’s Hospital, 895 F.3d 730 (10th Cir. 2018), the Tenth Circuit reversed the Utah District Court’s decision to dismiss a whistleblower’s FCA claim. The claim asserted by the whistleblower arose from allegedly medically unnecessary open heart surgeries. According to the Tenth Circuit, a doctor’s certification to the government that a procedure is reasonable and necessary is false under the FCA if the procedure was not reasonable and necessary, as defined in the context of the procedure at issue. Even when judgment calls are required under the standard, a claim may still be false.

The Polukoff case is consistent with the trend of cases indicating that the more demanding standards for materiality and scienter do not apply to the falsity element of a whistleblower’s FCA claim.

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