On Demand CLE: Pretrial False Claims Act Litigation

CLE, Reuben Guttman Articles, Traci Buschner Articles, Whistleblower News, Whistleblower Resources

Federal Bar Association Webinar – Recorded May 3, 2023

The False Claims Act, which dates back to the Lincoln Administration, provides the government the right to pursue individuals or entities that file or cause to be filed false or fraudulent claims for payment or approval with the Government.

The statute has “qui tam” provisions that allow private individuals – known as Relators – to file suit on behalf of the government. The government has a right to intervene in and take over these suits, but where the government elects not to do so, the Relator may pursue action on behalf of the government and secure a bounty.

Recent years have seen a trend whereby more and more suits are being pursued by Relators – and their counsel – absent government intervention.

From case investigation to pleading and motions practice, this 60-minute CLE program will provide an introductory boot camp on the False Claims Act pretrial advocacy.

Agenda

  • Client intake and interviews
  • Case investigation
  • Complaint preparation and FCA pleading requirements
  • Rule 12 Motions practice
  • FCA discovery issues
  • Summary Judgement
  • Experts
  • Evidentiary Rules relevant to an FCA case

Date / Time: Recorded May 3, 2023, Duration 1 hour
Closed-captioning available

To learn more or to register visit https://federalbarcle.org/product/pretrial-false-claims-act-litigation/

This course is co-sponsored with myLawCLE.

Speakers:

Traci L. Buschner | Guttman, Buschner & Brooks PLLC.

Traci L. Buschner is a founding member of Guttman, Buschner & Brooks PLLC. A former state prosecutor, Ms. Buschner has spent over 20 years representing plaintiffs in complex litigation ranging from class actions to government contract fraud. She has been involved in multi-million dollar recoveries on behalf of workers asserting claims under numerous federal statutes and has handled some of the largest successful False Claims Act actions, bringing billions of dollars to the United States Government. Examples of Ms. Buschner’s work include representing:

  • The lead whistleblower, Meredith McCoyd, in a False Claims Act case
    against Abbott Laboratories, resulting in a settlement of over $1.5 billion. The case involved Abbott’s illegal efforts to promote an anti-seizure medication, Depakote, through off-label marketing, misbranding and paying physicians to write prescriptions. The settlement was one of the largest recoveries by the United States Government under the False Claims Act against a pharmaceutical company
  • The lead whistleblowers in a False Claims Act case against Wyeth Pharmaceuticals, a subsidiary of Pfizer, resulting in a $257.4 million settlement. The settlement agreement outlined the company’s efforts – for over a decade – to unlawfully market a powerful immunosuppressant drug Rapamune, used to treat patients who have undergone kidney transplants
  • A former sales manager in a False Claims Act case against Amgen, Inc., culminating in a settlement of $24.9 million . The settlement agreement charged that Amgen paid kickbacks, in the guise of rebates, to long-term care pharmacies in exchange for switching nursing home patients from a competitor drug to Aranesp and encouraged pharmacists to recommend the drug for uses outside the drug’s FDA label
  • A nursing professional and former Sales Manager in a False Claims Act case resulting in a $1.04 billion settlement against GlaxoSmithKline (GSK). The relator alleged that GSK made false and misleading statements about Advair’s safety and efficacy, thus enabling false claims to Medicare, Medicaid, and other reimbursement programs
  • One of the six main whistleblowers in a False Claims Act case against Pfizer, Inc., which in 2009 resulted in the government’s recovery of $2.3 billion
  • A physician and two nurses in a False Claims Act case against Community Health Systems, Inc. (CHS), which resulted in the Government’s recovery of over $98 million related, in part, to unnecessary emergency room admissions at over 100 separate hospitals across the country
  • A certified professional coder in a False Claims Act case against a suburban New York oncology group, resulting in a $5.5 million dollar recovery based upon admissions of co-pay waiver and up-coding

Prior to joining GBB, she was an attorney with the Washington, D.C. office of one of the nation’s largest personal injury and labor firms and also practiced with an Austin, Texas firm where she represented victims of asbestos exposure.

Ms. Buschner has represented some of the nation’s largest labor unions and their members. On behalf of the Oil, Chemical & Atomic Workers International Union (OCAW), AFL-CIO, Ms. Buschner was actively involved in environmental litigation which led to Secretary of Energy, William Richardson, canceling a project to recycle radioactive nickel at the Oak Ridge, Tennessee K-25 Nuclear Weapons Complex. The documentation of her efforts to expose faulty government contracting at Department of Energy Nuclear weapons sites was published in The Environmental Forum, Volume 17, No. 6, November/December 2000.

Ms. Buschner has been recognized for several years, by Washingtonian Magazine, as a top Whistleblower Lawyer. Her work on the Abbott False Claims Act case at Grant & Eisenhofer was featured in The National Law Journal, “Plaintiffs’ Hot List” (2011-2012).

Ms. Buschner currently serves on the Executive Committee of the Trial Lawyers Association of Metropolitan Washington, D.C. (TLA-DC) as the Treasurer and Miami University’s Pre-Law Alumni Board. She has also served as a faculty member (2011, 2012,2014 and 2016) for Emory University Law School’s Trial Techniques Program.

Ms. Buschner graduated from Miami University in 1990, and received her J.D. from the University of Louisville in 1995. She is admitted to practice in the District of Columbia; the Commonwealth of Kentucky; the U.S. District Court for the District of Columbia; the U.S. District Court for the Eastern District of Kentucky; the U.S. District Court for the District of Maryland and the U.S. Court of Appeals for the District of Columbia Circuit.

Ms. Buschner has co-authored two articles with colleague Reuben A. Guttman: “Patients Suffer from Drug Industry’s Chronic Greed,” Wall Street Journal MarketWatch (August 7, 2013) and “Taking the Next Step in Pharma Fraud,” American Constitution Society Blog (May 8, 2012).

Reuben A. Guttman | Guttman, Buschner & Brooks PLLC

Reuben Guttman is a founding member of Guttman, Buschner & Brooks PLLC (GBB).

His practice involves complex litigation and class actions. He has tried and/or litigated claims involving fraud, breach of fiduciary duty, environmental derelictions, antitrust, business interference and other common law torts or statutory violations.

The International Business Times called Mr. Guttman “one of the world’s most prominent whistleblower attorneys,” and he has been recognized as a Washingtonian Top Lawyer by Washingtonian Magazine. A February 19, 2015 profile of Mr Guttman by the Boston Globe’s STAT NEWS referred to him as the “Lawyer Pharma Loves to Hate.” Citing a $98 million recovery from Community Health Systems, Inc., Law 360 named Mr. Guttman a “Health Care MVP” and profiled him in a December 1, 2014 article. Author David Dayen, writing in his Book, Chain of Title (The New Press, 2016) cited Mr. Guttman’s work on behalf of robo-signing whistleblower, Lynn Szymoniak, noting “he had won some of the largest awards in the history of the False Claims Act; there was really nobody better for the case.” Writing in their book, The Corporate Whistleblower’s Survival Guide, (Berrett-Koehler Publishers, Inc., 2011), authors Tom Devine and Tarek F. Massarani wrote that “in settling qui tam litigation, [Mr. Guttman] has aggressively and successfully negotiated for corrective action against public health and safety consequences from prescription drug fraud.” In the book, When Good Companies Go Bad, (ABC CLIO, 2014), authors Donald Beachler and Thomas Shevory profiled Mr. Guttman’s off label marketing case against Abbott labs, involving the drug Depakote, which resulted in a $1.6 billion recovery in 2012 for state and federal governments. The Spring, 2013 Cover Story for the Emory Lawyer, profiled Mr. Guttman as one of Emory Law School’s leading players in the area of complex litigation noting that “even before filing a case, Guttman’s team engages in intensive investigation, retains experts and prepares as if a trial is imminent.”

Representing one of the six main whistleblowers in litigation, Mr. Guttman’s work resulted in the government’s September 2009, $2.3 billion settlement with Pfizer Pharmaceutical. In addition to the Abbott Lab’s $1.6 billion settlement in 2012, Mr. Guttman represented one of the main whistleblowers in a case against GlaxoSmithKline that returned over $3 billion to the government. That same year Mr. Guttman represented whistleblower, Lynn Szymoniak, whose qui tam case, involving fraudulent mortgage assignments, was resolved as part of the government’s $25 billion settlement with some of the world’s largest banks. The following year, in 2013, Mr. Guttman was lead counsel for the lead False Claims Act whistleblowers in a case involving the kidney-transplant drug, Rapamune. That case culminated on July 30, 2013 in a U.S. Department of Justice announcement that Pfizer had agreed to pay $491 million to settle criminal and civil charges stemming from the illegal marketing of Rapamune by Wyeth Pharmaceuticals, which was acquired by Pfizer in 2009. In 2013, Mr. Guttman was also lead counsel in a case against Amgen, Inc. et al., resulting in the recovery of $24.9 million. In 2014, Mr. Guttman recovered $4.19 million from co-defendant, Omnicare, and in 2015 he recovered another $2.15 million from co-defendant Pharmerica. On October 17, 2016, Mr. Guttman and his firm, GBB, announced the recovery of another $28 million from Omnicare. That same month, GBB announced the recovery of $5.3 million in a case involving fraudulent Medicare claims submitted by a New York State provider.

Mr. Guttman was counsel in U.S. ex rel. Johnson v. Shell Oil Co., 33 F. Supp. 2d 528 (E.D. Tex. 1999), where over $300 million was recovered from the oil industry. On behalf of a European whistleblower, Mr. Guttman was counsel in litigation that resulted in a $13 million settlement.

He served as lead counsel in a series of cases resulting in the recovery of more than $30 million under the Federal Fair Labor Standards Act. Cases brought by Mr. Guttman on behalf of nuclear weapons workers at “Manhattan Project” nuclear weapons sites resulted in congressional oversight and changes in procurement practices, and dread disease compensation legislation, covering the nation’s nuclear weapons complex workforce. A case brought by Mr. Guttman against the Secretary of Energy under the National Environmental Policy Act (NEPA) resulted in the cancelling of a project to recycle radioactive Nickel at the Oak Ridge National Laboratory.

Mr. Guttman served as lead counsel in litigation brought on behalf of prison workers in the District of Columbia, resulting in injunctive relief protecting workers against exposure to blood-borne pathogens and he served as lead counsel in a mediation before the United States Equal Employment Opportunity Commission, resulting in work place standards and back pay for minority employees at a large Texas oil refinery.

In addition to his work on behalf of workers and whistleblowers, Mr. Guttman is the author and/or editor of numerous articles, book chapters, and technical publications.

His commentary and/or articles have appeared in Market Watch, American Lawyer Media, AOL Government, Accounting Today, the Jerusalem Post, the International Business Times, the Atlanta Journal/Constitution, The Hill, Forbes, Law 360, Blog of The American Constitution Society, and the Fulton County Reporter. Mr. Guttman has written almost 100 commentaries on politics and the law for The Global Legal Post – www.globallegalpost.com. He was a founder and contributing editor and a writer for The Regulatory Analyst; Medical Waste (Warren, Gorham & Lamont, Publishers)

His article, Pharmaceutical Regulation in the United States: A Confluence of Influences, was published in Chinese by the Peking University Public Interest Law Journal, Vol. 1, Page 187 (2010). He is co-author (with Professor Paul Zwier) of A Failure of Remedies: The Case Against Big Pharma, (Emory Corporate Governance and Accountability Review, 2016). He is also co-author (with Jennifer Williams) of Controlling Government Contractors; Can the False Claims Act be More Effective (Sedona Conference Journal Vol. 14, Fall, 2013). And he is a co-author (with Professor Paul Zwier) of The New World of Electoral Politics and What It Means; An Introductory Essay, (Emory Corporate Governance and Accountability Review, 2017).

Mr. Guttman is co-author of SEC v. HG Pharmaceutical and Gonzalez v. Hewitt which are “case files” published by the Emory University School of Law Center for Advocacy and Dispute Resolution and used to train law students and practicing attorneys. He is also co-author of the case file, United States ex Rel Rodriguez v Hughes, et. al (Defendants Materials, Relators Materials, Faculty Materials), (National Institute of Trial Advocacy, 2016). Mr. Guttman is author or co-author of Chapters 5-10 in Internal Investigations: How to Protect Your Clients or Companies in the Global, Post Dodd-Frank World (Practicing Law Institute, 2012). He is co-author (With Professor Kathryn Wagner) of The Asbestos Model; Labor and Citizens Groups and a Multipronged Approach to Regulatory Change (published as Chapter 5 in Conflict Resolution and Public Policy, (Edited by Miriam K. Mills, Greenwood Press, 1990). He served as an advisory board member and Chapter author for Environmental Management in Healthcare Facilities (W.B. Saunders, 1998). He is co-author with Professor J.C. Lore of Pretrial Advocacy, (Lexis-Nexis and the National Institute of Trial Advocacy) (Work in progress to be published, Fall 2017).

He has appeared on ABC Nightly News, CNN, Bloomberg News, and has been quoted in major publications including The Wall Street Journal, The New York Times, The New York Post, The Washington Post, The Washington Times, The Los Angeles Times, The Atlanta Journal-Constitution, USA Today, Houston Chronicle, Dallas Morning News and national wire services including the Associated Press, Reuters and Bloomberg.

In addition to his writings, Mr. Guttman has testified before committees of the United States House of Representatives and the United States Senate on the Asbestos Hazard Emergency Response Act (AHERA). In 1992, he advised President-elect Clinton’s transition team on labor policy and worker health and safety regulation.

He has been a Senior Fellow and Adjunct Professor at the Emory University School of Law Center for Advocacy and Dispute Resolution and has been a Team Leader for Emory Law School’s Kessler-Eidson Trial Techniques Program. He served on the Emory Law School Dean’s Advisory Board and received the Emory Law School Alumni Service Award in 2015. He is a founder of and Senior Advisor to the Emory Corporate Governance and Accountability Review (ECGAR), and a faculty member of the National Institute of Trial Advocacy. Mr. Guttman has also served as an Adjunct Professor at the Rutgers University School of Law.

As part of a U.S. State Department program in conjunction with the Emory law Center for Advocacy and Dispute Resolution, he has been one of five visiting professors at Universidad Panamericana in Mexico City, training Mexican Judges and practitioners on oral advocacy and trial practice. He has been a guest lecturer at a number of universities including John Hopkins, the University of Pennsylvania, Jiao Tong University in Shanghai, Peking University in Beijing and Renmin University in Beijing. In 2006, the Dutch Embassy in China invited him to share his perspectives with experts in China about changes to the nation’s labor laws.

Mr. Guttman earned his law degree at Emory University School of Law, (1985), and his Bachelor’s Degree from the University of Rochester, (1981). He began his legal career as Washington, DC counsel for the Service Employees International Union, (SEIU), AFL-CIO where he served from 1985 until 1990. He is admitted to practice in the State of Georgia; the District of Columbia; the Commonwealth of Pennsylvania; the State of New Jersey; the Supreme Court of the United States, the United States District Courts for the District of Columbia, the District of New Jersey, the District of Nebraska, the Northern District of Georgia, the District of Maryland, the Western District of Michigan, and the Eastern District of Pennsylvania; and the United States Courts of Appeal for the Third Circuit, the Fourth Circuit and the D.C. Circuit.

Mr. Guttman is a Fellow of the American Bar Foundation. Mr. Guttman served on the board of the American constitution society and currently serves on the advisory board. He is the founder of www.whistleblowerlaws.com.

Whistleblowers accuse Erlanger of illegal billing for concurrent surgeries that left patients unsupervised

Reuben Guttman Articles, Whistleblower Articles, Whistleblower News

A federal whistleblower lawsuit filed against Erlanger Health System accuses hospital leaders of illegal billing practices by knowingly overlapping surgeries and allowing trainees to operate on patients without physician supervision, among other patient safety and compliance issues.

The complaint, brought under the federal False Claims Act and Tennessee Medicaid False Claims Act and filed in April 2021 in U.S. District Court, alleges surgeons who practice at Erlanger violated state and federal law by regularly billing for two or three different surgeries in the same timeframe while leaving residents and interns alone to complete operations without proper oversight or patient consent.

Medicare and Tennessee’s Medicaid program, TennCare, require a supervising or teaching physician to be present for the “key and critical” portions of each surgery in order to bill for the procedure and receive payment.

As a teaching hospital, Erlanger is supposed to use young doctors in training, known as residents, during surgeries. It’s up to the teaching physicians to decide what aspects of the surgery are key and critical because it can vary significantly depending on the individual patient, procedure or the skills of the resident.

“The surgeries were often scheduled to start within fifteen to thirty minutes of one another and, in the case of three overlapping bookings, two or more surgeries frequently occurred entirely within the duration of a third,” the suit alleges. “This routine practice meant unwitting patients were subjected to longer-than-necessary operating-room times and charges, often under anesthesia, often in the care of trainees, and nearly always without the backup of a properly qualified surgeon, despite legal requirements.”

The plaintiffs — Erlanger’s former chief information officer, Dr. Stephen Adams, and orthopedic surgeons Dr. Julie Adams and Dr. Scott Steinmann — say in the suit that they raised those concerns about patient safety and compliance with Erlanger leadership, which ultimately cost them their jobs.

“Erlanger deliberately turned a blind eye to the problems, deciding, instead, to focus negative attention upon those who dared to raise such issues,” the suit alleges.

The three are also seeking payment for damages they claim came as part of a “malicious and unlawful campaign of retaliation” under former Erlanger CEO Dr. Will Jackson, according to the suit.

The False Claims Act is a longstanding statute that allows individuals with non-public information to bring a suit in the name of the government to allege false statements or fraudulent representations have been used to secure government payment.

The law offers financial incentives for those suits as a way to safeguard public funds spent on critical services, such as health care, military support, infrastructure and disaster relief.

If successful, the whistleblower — also known as the relator — typically receives a portion of the recovery ranging between 15% and 30%, according to the U.S. Department of Justice website.

By law, those suits must be filed under seal to afford the government an opportunity to investigate the allegations and decide whether to take the case forward — which occurs in about 20% of cases filed. If the government declines to intervene, the whistleblowers have the option to proceed themselves.

Erlanger spokesperson Blaine Kelley said in an emailed statement that the state of Tennessee has already declined to intervene in the case. Erlanger officials are still awaiting confirmation of the U.S. Attorney’s office’s decision, she said.

“Erlanger has worked with and otherwise fully cooperated with the government’s review of the claims as they relate to Erlanger over the past 18 months,” Kelley wrote. “Erlanger disputes the merit of the allegations.”

She added, “No instances of patient harm relating to these allegations have been identified.”

Reuben Guttman, an attorney representing the whistleblowers, said his clients are unable to discuss the case.

“The three renowned physicians and professors of medicine have alleged issues of significant public importance, and they look forward to a full airing of their concerns in court,” Guttman said by email. “They hope that whatever comes out of this litigation will ultimately lead to better medical care for the vulnerable and the voiceless.”

Dr. Stephen Adams is board-certified in both family medicine and medical informatics and is a professor in the department of family medicine at Erlanger’s academic affiliate, the University of Tennessee College of Medicine Chattanooga, where he has worked since 1997, according to the suit.

Dr. Julie Adams and her husband, Steinmann, are leaders in their field and were recruited in 2019 to join the college of medicine faculty and Erlanger. At the time, Steinmann was appointed chairman of the Department of Orthopedic Surgery. He is now an emeritus professor of orthopedics at the Mayo Clinic College of Medicine.

In fiscal year 2022, whistleblowers filed 652 False Claims Act suits, with health care fraud representing the most common type of cases, according to the Department of Justice.

In February 2022, Massachusetts General Hospital — the renowned teaching hospital affiliated with Harvard — agreed to pay $14.6 million to settle a federal lawsuit alleging it fraudulently billed government insurers by overlapping surgeries as supervising surgeons worked in other operating rooms, according to a report in the Boston Globe. Just last month, the University of Pittsburgh Medical Center, University of Pittsburgh Physicians and one of the group’s leading surgeons agreed to pay $8.5 million to the United States to resolve claims over improper billing for concurrent surgeries.

Source: By Elizabeth Fite, Chattanooga Times Free Press.
Contact Elizabeth Fite at efite@timesfreepress.com or 423-757-6673.

Article available on-line at https://www.timesfreepress.com/news/2023/mar/27/whistleblowers-accuse-erlanger-illegal-billing-tfp/

UPMC, head of cardiothoracic surgery will pay $8.5M to feds to settle lawsuit

Reuben Guttman Articles, Whistleblower News

“Patients don’t know their doctors are serving two masters.”

UPMC, a renowned cardiothoracic surgeon there and a physicians group will pay the federal government $8.5 million to settle a lawsuit accusing them of knowingly submitting hundreds of false claims to Medicare, failing to follow medical standards for surgery and knowingly placing patients at risk.

he U.S. Attorney’s Office filed a lawsuit against UPMC, Dr. James Luketich and University of Pittsburgh Physicians in September 2021 alleging Luketich was regularly scheduling multiple complex surgeries at the same time, forcing him to move between operating rooms and sometimes hospitals, while requiring patients to stay under additional hours of anesthesia.

In one case, a patient lost parts of a hand and another lost a lower leg as a result, the government said.

The U.S. Attorney’s Office said the settlement will resolve the claims in the case.

Paul Wood, a UPMC spokesman, said at issue in the complaint was compliance with Centers for Medicare and Medicaid Services teaching physician regulations and related billing guidance, as well as UPMC’s internal surgical policies.

“While UPMC continues to believe Dr. Luketich’s surgical practice complies with CMS’s requirements, it has agreed to pay $8.5 million to the government to avoid the distraction and expense of further litigation,” Wood said.

In the future, he continued, UPMC will be permitted to seek clarity from Medicare on how it should bill for complex procedures.

Efrem Grail, the attorney representing Luketich, said he and his client are pleased the settlement ends the government’s case.

“Medical schools and their hospitals have sought clarity about the billing regulation for teaching physicians at issue here for years, and the United States has never provided it,” Grail said. “This settlement provides a mechanism we hope will lead to authoritative guidance so that universally respected surgeons like Dr. Luketich can return their focus to training young doctors to save lives without having to put up with baseless claims of fraud.”

In addition to the $8.5 million payment, the defendants are required to create a corrective action plan for Luketich and submit to a yearlong, third-party audit of Luketich’s billings to Medicare for physician services.

The initial lawsuit was filed following allegations brought by former UPMC surgeon Dr. Jonathan D’Cunha, who worked for the health system from 2012 to 2019 and served as the surgical director of lung transplantation.

D’Cunha, who now practices in Arizona, filed a federal whistleblower complaint in April 2019.

He also is involved in an ongoing civil dispute in Allegheny County Common Pleas Court regarding Luketich’s actions.

Bernadette Fedorka and her husband are suing Luketich and UPMC alleging that she received improper care because of the ongoing practices at play in the federal complaint. Luketich was not her treating physician and did not care for her.

In that civil case, UPMC and Luketich filed a motion for a preliminary injunction seeking to prohibit the parties from using a 2018 secretly obtained recording between Luketich and his doctor, who had been for years treating him with suboxone.

Judge Philip Ignelzi held several days of contentious hearings on the matter last year, and the parties filed briefs outlining their positions on the injunction last week.

A ruling is expected on the injunction request soon.

As part of the federal complaint, the U.S. Attorney’s Office said UPMC “regularly sacrificed patient health in order to increase surgical volume,” while violating Medicare rules.

Those rules require teaching hospitals to have a teaching physician in the operating room during “critical portions” of a procedure and “immediately available” throughout the procedure.

“This is an important settlement and a just conclusion to the United States’ investigation into Dr. Luketich’s surgical and billing practices, and UPMC and UPP’s acceptance of those practices,” said Acting U.S. Attorney Troy Rivetti. “This office is committed to safeguarding the Medicare and Medicaid programs, and to protecting those programs’ beneficiaries. No medical provider — however renowned — is excepted from scrutiny or above the law.”

There have been at least three other cases nationally in which large hospital systems have settled similar billing allegations over a lack of oversight in the operating room and simultaneous surgical procedures.

Massachusetts General Hospital in Boston paid $14.6 million last year; St. Joseph’s Hospital in Phoenix paid $10 million in 2021; and Lenox Hill Hospital in New York City paid $12.3 million in a settlement in 2019.

Attorney Reuben Guttman, who was counsel in the New York and Boston cases, called the conduct involved in these types of claims “egregious,” saying the surgeons involved are taking advantage of their patients.

“These practices at teaching hospitals across the country are pervasive, and it’s a real problem,” Guttman said. “Patients don’t know their doctors are serving two masters.”

Although the financial settlement in the UPMC case is small in comparison to the hospital system’s $24 billion in annual revenue, Guttman said it is still important.

“The money is going to be inconsequential. But it’s more you’re changing the standard of care,” he said. “Every single settlement like this is important because it sheds light on a practice that is pervasive.”

Because of this settlement, Guttman said plaintiffs in any medical malpractice cases against UPMC going forward will be able to ask what other cases their doctors were working on at the same time.

“It’s going to expose UPMC to a lot of inquiry in medical malpractice cases, and that will drive change,” he said.

Guttman suggested UPMC’s insurance carriers also will impose new requirements on the health system to limit that risk.

The practice of hosting multiple procedures at the same time, Guttman said, is another example of money driving medical care, noting that fraud like this ends up with Medicare and Medicaid being cheated and patients receiving less-favorable outcomes.

Guttman suspects there are similar cases in the pipeline. He said every time a case such as this one settles, physicians working in a setting where fraud is occurring will feel emboldened to step forward as a whistleblower.

“UPMC can’t just put this in a box and say this is done,” Guttman said. “UPMC is misrepresenting the settlement as saying it’s a billing problem. It’s a patient care problem that they’ve billed for.”

Source: Paul Reed, Tribune-Review. Article available at https://triblive.com/news/health-now/upmc-head-of-cardiothoracic-surgery-will-pay-8-5m-to-feds-to-settle-lawsuit/.

CLE: Demand Letters and Pre-Complaint Settlement

CLE, Featured, Reuben Guttman Articles, Whistleblower News, Whistleblower Resources

Program Summary

Civil litigation is no more than a process to resolve disputes. Most cases never go to trial because the process is designed to provide parties with sufficient information about their risks before a decision maker such that they reach their own resolution.

Every now and then, there are cases that can be resolved absent the cost and time incumbent in the civil litigation process.

This CLE program will outline the types of cases susceptible to pre-complaint resolution and the various methods that may be employed to bring the parties to a point where they can resolve their disputes.

Key topics to be discussed:

  • The various uses purposes for pre-complaint dialogue
  • The purpose, tone, and form of a demand letter
  • How to keep the dialogue moving in the right direction
  • The relevant evidentiary and ethical rules

Date / Time: February 28, 2023

  • 2:00 pm – 3:00 pm Eastern
  • 1:00 pm – 2:00 pm Central
  • 12:00 pm – 1:00 pm Mountain
  • 11:00 am – 12:00 pm Pacific

Closed-captioning available.

Speakers

Reuben Guttman | Guttman, Buschner and Brooks PLLC

Reuben Guttman is a founding member of Guttman, Buschner and Brooks PLLC. His practice involves complex litigation and class actions. He has represented clients in claims brought under the Federal False Claims Act, securities laws, the Price Anderson Act, Department of Energy statutes and regulations, the Worker Adjustment and Retraining Notification Act (WARN), Racketeer Influenced and Corrupt Organizations Act (RICO) and various employment discrimination, labor and environmental statutes. He has also tried and/or litigated claims involving fraud, breach of fiduciary duty, antitrust, business interference and other common law torts.

The International Business Times has called Mr. Guttman “one of the world’s most prominent whistleblower attorneys.” He has served as counsel in some of the largest recoveries under the False Claims Act. Mr. Guttman served as lead counsel in a series of cases resulting in the recovery of more than $30 million under the Federal Fair Labor Standards Act. Mr. Guttman is the author and/or editor of numerous articles, book chapters, and technical publications.

In addition to his writings, Mr. Guttman has testified before committees of the United States House of Representatives and the United States Senate on the Asbestos Hazard Emergency Response Act (AHERA). Mr. Guttman earned his law degree at Emory University School of Law, where he has been a Senior Fellow and Adjunct Professor at the Emory University School of Law Center for Advocacy and Dispute Resolution and has been a Team Leader for the school’s Trial Techniques Program. He is a faculty member of the National Institute for Trial Advocacy and Fellow of the American Bar Foundation.

He is currently a Professional Lecturer at the American University School of Public Affairs where he teaches Equal Protection/Constitutional Law. He is co-author of the text Pretrial Advocacy (NITA/Wolters-Kluwer 2021 with Professor JC Lore) and he has published more than 100 articles.

Agenda

I. The various uses purposes for pre-complaint dialogue | 2:00pm – 2:15pm

II. The purpose, tone, and form of a demand letter | 2:15pm – 2:30pm

III. How to keep the dialogue moving in the right direction | 2:30pm – 2:45pm

IV. The relevant evidentiary and ethical rules | 2:45pm – 3:00pm

To Register or for more information visit: https://mylawcle.com/products/demand-letters-and-pre-complaint-settlement/

Demanding more impact from impact litigation: lessons to be learned from multi-state opioid settlements

Reuben Guttman Articles, Whistleblower Articles, Whistleblower News

By Reuben Guttman and Liza Vertinsky, July 25, 2022

In the 1990s, state Attorneys General learned how to leverage their resources when they retained private counsel to sue the tobacco industry. The private attorneys worked on contingency, meaning they did not get paid unless money was recovered from the tobacco industry. For their part, the states were able to take on novel litigation and draw from private investments in legal innovation without putting taxpayer dollars at risk.

Since the Tobacco Master Settlement Agreement was signed in 1998, state Attorneys General have worked with private counsel in similar relationships to bring an array of health, safety, and environmental suits focused on health impacts. These suits have included cases against drug companies, the most notorious of which featured opioid manufacturers and distributors.

In July 2022, 52 states and territories, along with many local governments, entered into a $26 billion multijurisdictional agreement with three major pharmaceutical distributors and a pharmaceutical manufacturer to settle claims arising from their opioid business practices. This multistate opioid settlement followed earlier ones reached with the now-infamous Purdue Pharma, as well as with McKinsey Consulting, Mallinckrodt, and Insys Therapeutics, and was followed by settlements with two more opioid manufacturers. The result was a multi-state enforcement effort by Attorneys General that is the second largest in U.S. history, exceeded only by the Tobacco Master Settlement Agreement.

While the state Attorneys General who participated in these suits and settlements were quick to herald them as a major success, with more than $30 billion in settlement funds and future monitoring and restricting future opioid deliveries, it is a stretch to say these are industry-changing events. Too little was done to educate policymakers and the public about the nature and sources of industry misconduct and to address the remaining vulnerabilities in the pharmaceutical manufacturing and distribution system. The results did too little to change the market ecosystem that fueled the epidemic.

The opioid litigation, like many cases brought against pharmaceutical and device companies, challenged marketing practices that have caused products to be used in ways that place profits ahead of patients, often putting patients at risk of harm. These lawsuits exposed practices that have resulted in professional standards of care that seem to be influenced more by Wall Street promises than by medical necessity.

Yet far too often, these cases are resolved short of full fact finding — called discovery — or without a public trial and a published court decision. Multi-million-dollar opioid settlement resolutions are touted in press releases as major successes while the culprit corporations admit to nothing, simultaneously telling investors that the settlement was a business decision and will not affect the long-term bottom line. Indeed, history shows that when drug companies pay hundreds of millions of dollars — or even billions of dollars — to resolve claims of drug marketing derelictions, their price per share is not affected, or may even get a boost because investors believe the settlement was a cheap fee for a license to break the law.

As much as these cases have provided an inkling of the profit-motivated misconduct of companies that Americans depend on for health care and a safe environment, knowledge of the depth of corporate misconduct remains just that, an inkling. Confidentiality agreements — often executed to prevent delays in producing the documents required for civil litigation — keep the most sordid details secret. And when there is no trial, the public gets to learn little about identifying wrongful conduct and legislators have difficulty making laws that prevent it.

Supreme Court Justice Louis D. Brandeis famously wrote that sunshine is the best disinfectant. While recovering money for public programs is essential, state Attorneys General must do a better job of also making public the lessons learned from these opioid settlements. If the drug industry is using subtle marketing tactics to manipulate the prescribing habits of physicians, for example, the public — including legislators, regulators, the press, and even physicians — must know the details.

Impact litigation must be designed to effect changes in industry behavior. Just as the National Transportation Safety Board investigates and issues a public report when a train wreck occurs, and just as Environmental Impact Statements are required for federal projects that could significantly affect the quality of the human environment, state Attorneys General should treat corporate health and safety derelictions as deserving of detailed public reports. And they should make it clear to the attorneys involved — whether in-house or under contingency agreement — that confidentiality agreements cloaking the secrecy of wrongdoing are to be used only sparingly, to protect legitimate trade secrets that are not essential to reforming industry practices, and not to hide information that is important to the public.

In the end, the public needs to know all the facts and policymakers need to act on the facts. A simple press release announcing a seemingly high-dollar settlement doesn’t achieve either of those objectives.

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Reuben Guttman, a partner with Washington, D.C.-based Guttman, Buschner & Brooks, has litigated under the False Claims Act to challenge pharmaceutical marketing practices. Liza Vertinsky is a professor of law at the University of Maryland Francis King Carey School of Law. Their article “Public-Private Litigation for Health” was published in the Utah Law Review.

Source: Article available on-line at Statnews.com.

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