A whopping $3.7 billion was obtained by the U.S. Department of Justice in False Claims Act cases in fiscal year 2017, of which $2.4 billion was in cases involving health care fraud. The vast majority of the recoveries ($3.4 billion) were from qui tam cases brought by whistleblowers (known as relators) under the FCA, with a total of $392 million awarded to those relators. For the eighth straight year, recoveries in FCA health care fraud cases exceeded $2 billion. Total recoveries under the FCA since 1986, when Congress substantially strengthened the law, now total more than $56 billion.
The DOJ announcement and statistics reflect and underscore several notable themes:
Qui tam cases remain vital. DOJ received 669 qui tam cases, an average of more than twelve cases per week. The vast majority of FCA recoveries once again came from FCA cases brought by whistleblowers who, if the case is successful, share in the recovery. As DOJ noted, “Because those who defraud the government often hide their misconduct from public view, whistleblowers are often essential to uncovering the truth.”
Health care fraud continues to be the number one culprit. Players in the health care industry, including drug companies, hospitals, skilled nursing facilities, pharmacies, laboratories, and physicians, continue to lead the pack of FCA defendants and case recoveries. This has been true for over eight years and the industry shows little sign of relinquishing this dubious distinction. There is hay to be made in other sectors of the economy, as the press release shows, but health care leads the way.
The name of the game for a whistleblower continues to be whether DOJ decides to intervene in his or her case. While a whistleblower can proceed on his or her own in a declined case, and whistleblowers have successfully pursued declined cases over the last few years, the overall odds of success are exponentially higher if the government intervenes. Because the government only intervenes in 20%-25% of the qui tam cases it receives, it remains critically important for the whistleblower’s attorneys to secure an intervention decision by the government prosecutors.
We are proud that two of our cases are among the few singled out in the DOJ press release. These include our Mylan settlement ($465 million) and our settlement against Joseph Bogdan and AMI Monitoring ($13.4 million). The Mylan EpiPen settlement was the largest FCA settlement of the year while the Bogdan/AMI Monitoring/Spectocor settlement involved the rare instance where DOJ has held an individual accountable under the FCA.
For over 15 years, we have been privileged to help whistleblowers bring information about wrongdoing to the government, to work with the government to uncover the truth, and to obtain favorable results that recover money stolen from the taxpayers. We are already well into 2018 and we are excited for another successful year for the FCA and whistleblowers!