Within hours of the U.S. government’s unprecedented release last week of a trove of Medicare billing data, a small fraternity of lawyers who specialize in representing whistleblowers in healthcare fraud cases began to mobilize.
These lawyers earn their living bringing cases on behalf of employees at drug companies and healthcare providers who believe their bosses or colleagues may be cheating the federal Medicare system by bribing doctors to prescribe certain drugs, for example, or inflating bills.
A whistleblower who prevails gets up to 30 percent of whatever the government recovers, and 40 percent of that reward typically goes to the whistleblower’s lawyer.
Whistleblower cases can result in huge settlements, such as the $3 billion GlaxoSmithKline paid in 2012 to resolve claims that it promoted drugs for unapproved uses and failed to report certain safety data.
Patrick Burns, co-director of Taxpayers Against Fraud, a nonprofit advocacy group with around 400 whistleblower lawyers as members, said that right after the release on Wednesday a handful of lawyers asked him for help accessing the data, which is available online. The 2012 data runs for 10 million lines and shows how many times some 880,000 medical providers billed for a particular service, how much they charged and whether that deviated from the national norm.
Burns said he sent the database link to the entire 400-lawyer group, under the heading, “Have Fun!”
By Thursday, Pennsylvania lawyer Marc Raspanti was having a ball. Raspanti said he spent six hours combing through the data. He has several Medicare fraud lawsuits pending against pharmaceutical companies alleging kickbacks to certain doctors.
Raspanti is analyzing the data, he said, to see if doctors are prescribing an unusually high amount of the pharmaceutical company’s products. If so, he said, that could bolster allegations that something is amiss.
In the past Raspanti had to rely on his clients’ personal knowledge of any suspect billings, he said, and then had to subpoena government agencies for the supporting documents. “Now I have (the data) at my fingertips.” He said that has helped him on some cases, which he declined to identify.
Following the red flags
The data could also help direct lawyers to additional targets or potential witnesses in cases they have already filed, said Reuben Guttman, a Washington, D.C., whistleblower lawyer who said he jumped into the database soon after it was released.
For example, if a lawyer were representing a pharmaceutical sales manager accusing his company of paying kickbacks to certain doctors, the data could point to other providers using the company’s products who could serve as witnesses or be added as defendants if the billings suggest wrongdoing.
“It could expand the case beyond a certain institution or provider to multiple institutions or providers,” said Chris Coffin, a Louisiana lawyer who represents whistleblowers.
Other lawyers said the data could produce leads for new lawsuits. When red flags emerge – a doctor bills Medicare an unusually high amount for a particular drug, say – lawyers could investigate what might explain the aberrant figure. That could turn up a possible fraud.
“You’d have to be able to see that there’s (improper) influence actually being exerted over healthcare decisions,” said Michael Behn, a Chicago whistleblower lawyer. “But there’s the possibility this data could lead to actual cases.”
Consumer and press groups have been seeking the Medicare physician data since Jimmy Carter was in the White House. In 1979, the American Medical Association and the Florida Medical Association convinced a judge to bar officials from releasing the data to protect physicians’ privacy. Last May, a judge lifted the ban.
AMA spokesman Robert Mills declined to comment on the digging by lawyers and instead referred to the statement on Wednesday by AMA President Ardis Dee Hoven.
“Releasing the data without context will likely lead to inaccuracies, misinterpretations, false conclusions and other unintended consequences,” she said.
Indeed, data alone doesn’t make a lawsuit. Lawyers still need a client with inside knowledge of the alleged fraud. But employees in physicians’ offices or healthcare labs who suspect wrongdoing can now see whether their employers’ billings are out-of-line with the rest of the industry.
And that could seriously stiffen some of their spines.
[Image: Docs and nurses at patient bedside via Shutterstock]