Robert Salcido Quoted in Modern Healthcare, Law360 on SCOTUS Denial of Request to Clarify “Objective Falsity”

Akin Gump health care and life sciences partner Robert Salcido has been quoted in the Modern Healthcare article “Supreme Court won’t weigh in on False Claims Act standards case.” The article reports on a decision by the Supreme Court to decline to certify how false claims should be verified under the False Claims Act (FCA).

The case in question involved a request by the hospice provider Care Alternatives to review a determination by the U.S. Court of Appeals for the 3rd Circuit that a false claim could arise if an expert contradicted a physician’s reasoning for recommending hospice treatment. According to the article, the decision could make it harder for health care providers to dismiss cases and lead to longer and more costly legal proceedings.

Salcido said clinicians, possibly swayed by looming legal risks, “might think additional treatment is medically beneficial, but if that reasonable clinician judgment is disputed in the context of the FCA and there is a higher possibility of getting sued, the doctor may be disinclined to do that service.”

The case stemmed from a whistleblower who alleged that the hospice provider admitted patients who were not terminally ill.

Salcido also spoke about the case with Law360, for the article “Unaddressed Split On FCA Objectivity May Spur Settlements.” He noted that doctors may be hesitant to prescribe certain treatments for fear of their judgment being questioned down the line. In addition, he said, health care providers could also be reluctant to carry out internal reviews of treatment records, because a disagreement among their own doctors regarding the appropriateness of prior treatments might form another basis for an internal whistleblower’s FCA suit.

“The reason that creates a big problem is the False Claims Act provides for an independent cause of action when you've retained known overpayments,” stated Salcido.