Goldberg Kohn principal Roger Lewis, who focuses his practice on False Claims Act litigation, is quoted in a Law360 article entitled "Health Care & Life Sciences Litigation To Watch in 2023."
The article, published Jan. 2, 2023, summarizes key details of consequential cases in the coming year for doctors and hospitals, drug and device makers, laboratories and clinics, and other players in the nation's vast health care system.
The author reports that lawyers are forecasting fireworks in False Claims Act litigation this year on numerous fronts, including the Supreme Court, which has already taken up one FCA case and is closely eyeing another. In one case, the justices are handling a climactic clash over the U.S. Department of Justice's authority to end FCA suits — most of which involve billing of Medicare and Medicaid — despite objections from whistleblower plaintiffs.
In recent years, the DOJ began sinking FCA suits at an unprecedented pace. Its campaign stoked congressional ire, splintered circuit courts and culminated in a Supreme Court case, Polansky v. Executive Health Resources, that was argued in early December and appears unlikely to sharply curtail the DOJ's dismissal discretion.
A former DOJ health fraud prosecutor told Law360 that "all False Claims Act practitioners will be watching the Polansky case," even though the weighty questions about government powers probably won't produce a game-changing decision.
A different FCA case has also been gaining momentum in its bid for Supreme Court review, Schutte et al. v. SuperValu Inc. et al. The case involves the Seventh Circuit's conclusion that the billing practices of grocery-and-pharmacy chain SuperValu Inc. reflected an "objectively reasonable" interpretation of regulations, and that FCA liability therefore isn't permissible. There wouldn't be liability even if SuperValu never believed its interpretation was correct and had been told by its lawyers that another interpretation was better, the Seventh Circuit wrote in its controversial opinion.
The issue carries profound importance for companies that bill Medicare and Medicaid, because those programs are governed by a maze of duplicative and inconsistent federal and state regulations.
The case has seemingly been gathering steam for many months. After whistleblowers petitioned the high court last year, Sen. Chuck Grassley, R-Iowa, the modern FCA's architect, chimed in to offer his official support. The justices then sought input from the government, which hasn't formally intervened in the case.
In December, the U.S. Solicitor General urged review — "usually signifying that such review is imminent," said Roger Lewis.