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Volume XII, Number 176

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What Evidence Do You Need to File a Whistleblower Lawsuit?

If you have knowledge of or suspicions of fraud, wrongdoing, or abuse in your company and want to come forward to do the right thing as a whistleblower, your efforts are valuable and important. By speaking up, you can save taxpayer money, reduce waste, disincentivize future fraud, and correct malfeasance. Before you can prove that fraud has taken place, you might find yourself wondering what evidence you need in order to bring a claim under the False Claims Act.

Fraud can take place in many industries that involve government billing and contracts, but it is especially common in healthcare. Unfortunately, the process of blowing the whistle in the healthcare field often involves extensive institutional knowledge and access to confidential records. You may be left with questions about what proof is necessary for your case, and what is acceptable to gather and share.

Speak to a Whistleblower Lawyer

First and foremost, speaking to a whistleblower attorney can help guide you in understanding the specifics of your case, and what kinds of proof will be the most useful. Even in the pursuit of justice, there are certain kinds of documents, files, and records that may cause more trouble for your case than support it. For instance, recording conversations without consent is not legal in every state. When in doubt, ask a lawyer so that you do not damage your case with inadmissible evidence or activities that could get you into legal trouble.

Confidentiality

While many whistleblowers report their suspicions internally first, sure that they have simply uncovered an accident, it can be much more useful to speak with an attorney confidentially to ensure that evidence will not be destroyed. Speaking with a lawyer can help you find out what kinds of information you can and should gather, and which records are outside of your purview.

How Much Evidence Do I Need to Prove a Violation of the False Claims Act?

In general, you do not need an iron-clad case in order to report institutional wrongdoing. As a whistleblower, your role can be varied.

For instance, if you work in the billing department of a doctor’s office and are instructed to bill private insurance as well as Medicare or Medicaid for the same service, you might be able to provide concrete evidence of double billing. If you are a nurse, you might see patients’ charts and have a suspicion that patients are being prescribed medically unnecessary testing or medications—even if you yourself do not see the billing codes being submitted on the back end. The methods of blowing the whistle often depend on your role in the institution that is committing fraud.

Rule 11 of the False Claims Act

As a whistleblower, suspicion of fraud must be based on both plausibility and specificity. It is not enough to allege that fraud must be going on without the knowledge of how it might be occurring. Some examples of inadmissible claims might be:

  • “That office is getting so much new business—there must be a kickback scheme going on.”

  • “No way they got that government contract without some kind of inside job or bribe.”

  • “That doctor is making so much money these days. He must be cheating somehow.”

These sorts of claims are not rooted in any real knowledge. Rule 11 of the False Claims Act requires that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” This means that you must either be able to provide evidence of some kind to back up your claim or be able to provide enough specific direction that an investigation would prove wrongdoing.

Additionally, Rule 11 requires whistleblowers to pay the other side’s attorney’s fees if “the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.”

Publicly Available Evidence

The False Claims Act provides a “public disclosure bar,” meaning that fraud that has been reported to the government already or is in the public knowledge via news coverage, is generally not useable in a whistleblower case. The exception might be when something is publicly reported (for instance, in the news or published online), but pertains to fraud that has not yet been revealed. In that case, publicly available evidence would be useful to gather.

What Kinds of Evidence Can I Gather from a Company?

Here are a few guidelines to keep in mind as you contemplate collecting evidence for a possible whistleblower lawsuit:

  • Only gather evidence that is within the purview of your specific job. If you find yourself with access to documents organically that support your case, and they are not protected by a Non-Disclosure Agreement or other confidentiality clause, it may be acceptable to share them.

  • In general, do not take whole files that do not relate to your specific claim. Gathering evidence should be done with a specific purpose in mind.

  • Do not share evidence with anyone other than your whistleblower attorney.

  • Speak with a qualified attorney ahead of time who can help you understand what kinds of evidence will and will not be allowable in your case.

HIPAA Exception

While in general health information is kept confidential, there is a HIPAA exception when it comes to reporting fraud. In those cases, it can be permissible to share private health information, even without redacting patients’ information.

Next Steps to Filing a Whistleblower Lawsuit

Any information you can furnish to launch a Department of Justice investigation can help your case and can even increase your own financial reward in the event of a successful outcome. However, if you have specific concerns about the types of evidence you can and cannot collect, it is best to speak with a whistleblower attorney who can advise you about your role and what is acceptable to share. 

© 2022 by Tycko & Zavareei LLPNational Law Review, Volume XII, Number 103
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About this Author

Jonathan K. Tycko leads the Whistleblower Practice Group of Tycko & Zavareei LLP

In recent years, the laws of the United States have undergone a whistleblower revolution. Federal and state governments now offer substantial monetary awards to individuals who come forward with information about fraud on government programs, tax fraud, securities fraud, and fraud involving the banking industry. Whistleblowers also now have important legal protections, designed to prevent retaliation and blacklisting.

The law firm of Tycko & Zavareei LLP works on the cutting edge of this whistleblower revolution, taking on even the most complex and confidential whistleblower...

202-973-0900
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