Corporate defendants are frequently faced with a quandary—is the company’s highly sophisticated professional employee simply a fact witness or does their anticipated testimony propel them into the world of expert discovery? The individual knows the business inside and out, and typically has a comprehensive understanding of the entire industry, but the legal parameters of whether they qualify as a lay witness or expert witness in this context is not always clear. And either designation presents potentially significant risks. Companies must proceed with caution and consider the following before proceeding.Continue Reading A Non-Expert with Expertise: Navigating the Risks and Rewards of Testimony from Highly Sophisticated Professional Employees in Federal Court

Husch Blackwell’s False Claims Act team previously covered the results of a rare False Claims Act (FCA) trial in which a federal jury found that a surgical product distributor was liable for paying kickbacks to physicians. The federal judge overseeing that trial initially entered judgment against the distributor defendants for $487 million after trebling the government’s actual damages and then adding penalties for each kickback-tainted claim.

On February 8, 2024, however, that same federal judge amended the judgment over concerns that the statutory penalties were unconstitutionally excessive. This article highlights the issue and explains what those accused of violating the FCA can learn from this decision.Continue Reading Federal Court Reduces FCA Penalties by 82 Percent Because of Excessive Fines Clause Concerns

In response to the COVID-19 pandemic, pharmaceutical companies like Pfizer worked diligently to develop safe and effective vaccines. Following the FDA’s approval of these vaccines, many state governments and private employers—including those in the educational and medical fields—implemented policies requiring certain individuals obtain them. Some individuals subject to these policies have been challenging them in court ever since under a variety of constitutional and statutory arguments, largely without success. These cases typically alleged that government mandates violated the right to bodily integrity under the Fourteenth Amendment and that private employer mandates violated laws that prohibit discrimination based on disability and/or religious beliefs.Continue Reading Wash. Federal Judge Pokes Hole in New Wave of Vaccine Mandate Challenges

As previously reported in this post, criminal trials premised on upcoding evaluation and management (E/M) service codes are extremely rare. The Justice Department took that rare step in Maryland in connection with a practice in which Dr. Ron Elfenbein, a physician, billed Medicare and private payors a Level 4 E/M for patients receiving COVID-19 tests. That billing practice, which at times took place at drive-through COVID testing centers, resulted in Dr. Elfenbein’s indictment and conviction by a jury in Maryland federal court.

But on December 21, 2023, the federal judge who presided over that trial granted Dr. Elfenbein’s motion for judgment of acquittal, vacating the conviction. These motions are commonly made but seldom granted. Why was this particular motion for acquittal granted? And what can the healthcare community learn from this case? Read on for details.Continue Reading Federal Judge Acquits Physician Following Criminal E/M Fraud Conviction at Trial

When the same health plan administrator both administers a benefit plan and pays the benefits due under the plan, it is considered by courts to have a structural conflict of interest.  That conflict of interest is not problematic on its own – it is perfectly legal, and it is not a breach of fiduciary duty.  However, when a plan member files a lawsuit challenging the administrator’s denial of the member’s benefits, a court can consider the conflict of interest as a factor in whether the administrator’s denial was arbitrary and capricious.

Over the last several years, courts have provided administrators and their attorneys with guidance on how to limit the impact of this common structural conflict of interest.  When defending against denial of benefits claims under ERISA, 29 U.S.C. § 1132(a)(1)(B), defendant plan administrators should be aware of whether the conflict of interest exists and address it proactively to avoid negative inferences.Continue Reading When the Payor is Also the Decisionmaker in ERISA Benefits Lawsuits Under 29 U.S.C. § 1132(a)(1)(B)

Many long-term care residents live in Missouri nursing homes for years. But occasionally circumstances may change such that it is no longer appropriate for the resident to continue to reside at the facility. In certain cases, nursing homes may discharge or transfer a resident even if the resident does not consent to the discharge or transfer – this is known as an “involuntary discharge” or an “involuntary transfer.” In this case, the resident has the right to appeal the involuntary discharge or transfer.Continue Reading Avoiding the Pitfalls of Involuntary Nursing Home Discharges/Transfers in Missouri

Evaluation and management (E/M) services have been called “the core” of healthcare billing.[1] E/M is a catch-all claim, allowing medical professionals to bill for diagnosing or treating nearly any illness or injury. E/M is also divided into fairly subjective levels depending on complexity, and the differences between levels is often merely a difference of opinion. While the DOJ has brought cases based on disputes over E/M services before, those cases are typically civil and part of a more complex upcoding or unbundling scheme.[2] This is because nearly everything involving some effort expended by a physician could arguably justify that physician believing the E/M service was proper, and therefore criminal cases requiring scienter evidence that proves the case beyond a reasonable doubt are incredibly rare.

Yet one of those rare cases went to trial this month.Continue Reading Physician Loses Rare Criminal E/M Fraud Trial

Consistent with the Biden Administration’s whole-of-government approach to address perceived consolidation in a variety of industries, including in the healthcare industry, the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) Antitrust Division (collectively, the Agencies) are continuing to make good on their promise to increase scrutiny of mergers and acquisitions through newly proposed HSR rules and revised merger guidelines.Continue Reading Healthcare Industry Faces Heightened Antitrust Scrutiny Under New Merger Guidelines, HSR Rules

On June 14, 2023, a federal jury found that a Georgia physician knowingly violated the False Claims Act following a two-week trial on allegations that he made false claims to the Medicare Program. Now, despite just $1.1 million in improper payments stemming from false claims, a federal court is likely to impose a judgment that exceeds $27 million after adding statutory per-claim penalties and trebling the amount determined by the jury to be false.Continue Reading Georgia Physician Awaits $27+ Million Judgment Following False Claims Act Trial Loss

Following two weeks of trial testimony, a Travis County jury recently rendered a $10 million verdict in a novel corporate practice of medicine (CPOM) case. The jury found in favor of a physician hospitalist group that claimed a management company repeatedly broke its promise to comply with the state’s CPOM prohibition, putting profits over patients, among other wrongdoings.Continue Reading Texas Jury Renders $10 Million Verdict in Novel Corporate Practice of Medicine Case